Rule2021-26420
Registration Requirements Under the Sex Offender Registration and Notification Act
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 8, 2021
Effective
January 7, 2022
Issuing agencies
Justice Department
Abstract
The Department of Justice is adopting a rule that specifies the registration requirements under the Sex Offender Registration and Notification Act ("SORNA"). The rule in part reflects express requirements of SORNA and in part reflects the exercise of authorities SORNA grants to the Attorney General to interpret and implement SORNA's requirements. SORNA's requirements have previously been delineated in guidelines issued by the Attorney General for implementation of SORNA's requirements by registration jurisdictions.
Full Text
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[Federal Register Volume 86, Number 233 (Wednesday, December 8, 2021)]
[Rules and Regulations]
[Pages 69856-69887]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-26420]
[[Page 69855]]
Vol. 86
Wednesday,
No. 233
December 8, 2021
Part IV
Department of Justice
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28 CFR Part 72
Registration Requirements Under the Sex Offender Registration and
Notification Act; Final Rule
Federal Register / Vol. 86 , No. 233 / Wednesday, December 8, 2021 /
Rules and Regulations
[[Page 69856]]
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DEPARTMENT OF JUSTICE
28 CFR Part 72
[Docket No. OAG 157; AG Order No. 5244-2021]
RIN 1105-AB52
Registration Requirements Under the Sex Offender Registration and
Notification Act
AGENCY: Office of the Attorney General, Department of Justice.
ACTION: Final rule.
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SUMMARY: The Department of Justice is adopting a rule that specifies
the registration requirements under the Sex Offender Registration and
Notification Act (``SORNA''). The rule in part reflects express
requirements of SORNA and in part reflects the exercise of authorities
SORNA grants to the Attorney General to interpret and implement SORNA's
requirements. SORNA's requirements have previously been delineated in
guidelines issued by the Attorney General for implementation of SORNA's
requirements by registration jurisdictions.
DATES: This rule is effective January 7, 2022.
FOR FURTHER INFORMATION CONTACT: David J. Karp, Senior Counsel, Office
of Legal Policy, U.S. Department of Justice, Washington, DC, 202-514-
3273.
SUPPLEMENTARY INFORMATION: This rule finalizes a proposed rule,
Registration Requirements Under the Sex Offender Registration and
Notification Act (OAG 157; RIN 1105-AB52) (published August 13, 2020,
at 85 FR 49332).
Overview
The Sex Offender Registration and Notification Act (``SORNA''),
which is title I of the Adam Walsh Child Protection and Safety Act of
2006, Public Law 109-248, 34 U.S.C. 20901 et seq., establishes national
standards for sex offender registration and notification in the United
States. SORNA has a dual character, imposing registration obligations
on sex offenders as a matter of Federal law that are federally
enforceable under circumstances supporting Federal jurisdiction, see 18
U.S.C. 2250, and providing minimum national standards that non-Federal
jurisdictions are expected to incorporate in their sex offender
registration and notification programs, subject to a reduction of
Federal funding for those that fail to do so, see 34 U.S.C. 20912(a),
20926-27.
The Justice Department's Office of Sex Offender Sentencing,
Monitoring, Apprehending, Registering, and Tracking (``SMART Office'')
administers the national standards for sex offender registration and
notification under SORNA and assists all jurisdictions in implementing
the SORNA standards in their programs. See id. 20945. As provided by
SORNA, the Department of Justice also (i) prosecutes SORNA violations
by sex offenders committed under circumstances supporting Federal
jurisdiction, see 18 U.S.C. 2250; (ii) assists in the enforcement of
sex offender registration requirements through the activities of the
U.S. Marshals Service, see 34 U.S.C. 20941; (iii) operates, through the
Federal Bureau of Investigation, the National Sex Offender Registry,
which compiles the information obtained through the sex offender
registration programs of the states and other registration
jurisdictions and makes it available on a nationwide basis for law
enforcement purposes, see id. 20921; and (iv) operates the Dru Sjodin
National Sex Offender Public website, <a href="http://www.nsopw.gov">www.nsopw.gov</a>, which provides
public access through a single national site to the information about
sex offenders posted on the public sex offender websites of the various
registration jurisdictions, see id. 20922.
SORNA generally directs the Attorney General to ``issue guidelines
and regulations to interpret and implement [SORNA].'' Id. 20912(b).
SORNA also authorizes the Attorney General to take more specific
actions in certain contexts.
One such provision is 34 U.S.C. 20913. That section states in
subsection (b) that sex offenders are generally to register initially
before release from imprisonment, or within three business days of
sentencing if not sentenced to imprisonment, but it provides further in
subsection (d) that the Attorney General has ``the authority to specify
the applicability of the requirements of [SORNA] to sex offenders
convicted before the enactment of [SORNA] or its implementation in a
particular jurisdiction, and to prescribe rules for the registration of
any such sex offenders and for other categories of sex offenders who
are unable to comply with subsection (b).'' As discussed below in
connection with 28 CFR 72.3, section 20913(d) is not a constitutionally
impermissible delegation of legislative authority. Rather, it enables
the Attorney General to effectuate the legislative intent that SORNA
apply to all sex offenders, regardless of when they were convicted.
Another relevant provision lists several types of information that
sex offenders must provide for inclusion in sex offender registries,
and states that sex offenders must also provide ``[a]ny other
information required by the Attorney General.'' Id. 20914(a)(8). This
provision as well is not an impermissible delegation of legislative
authority, but rather is instrumental to the Attorney General's
effectuating the legislative objective to ``protect the public from sex
offenders and offenders against children'' by ``establish[ing] a
comprehensive national system for the registration of those
offenders.'' Id. 20901; see 73 FR at 38054-57; 76 FR at 1637. The
Attorney General's exercise of the authority under section 20914(a)(8)
is limited to requiring additional information that furthers the
legislative public safety objective or the implementation or
enforcement of SORNA's provisions. How that has been done is explained
below in connection with 28 CFR 72.6 and 72.7.
The Attorney General has exercised these authorities in previous
rulemakings and issuances of guidelines under SORNA, as detailed in the
rulemaking history and section-by-section analysis below, and the
interpretations and policy decisions in this rule follow those already
adopted in existing SORNA-related documents. The present rule provides
a concise and comprehensive statement of what sex offenders must do to
comply with SORNA's requirements.
In addition to SORNA's original provisions, described above, this
rulemaking draws on and implements provisions of the International
Megan's Law to Prevent Child Exploitation and Other Sexual Crimes
Through Advanced Notification of Traveling Sex Offenders
(``International Megan's Law''), Public Law 114-119. Section 6 of
International Megan's Law amended SORNA by (i) redesignating, in 34
U.S.C. 20914(a), former paragraph (7) as paragraph (8) and adding a new
paragraph (7) that requires a sex offender to provide for inclusion in
the sex offender registry information relating to intended travel
outside the United States, including several specified types of
information ``and any other itinerary or other travel-related
information required by the Attorney General''; (ii) adding a new
subsection (c) to 34 U.S.C. 20914 that requires sex offenders to
provide and update registration information required by SORNA ``in
conformity with any time and manner requirements prescribed by the
Attorney General''; and (iii) adding a new subsection (b) to SORNA's
criminal provision, 18 U.S.C. 2250, that specifically reaches
international travel reporting violations.
This rulemaking is not innovative in terms of policy. Many of the
requirements it articulates reflect
[[Page 69857]]
express SORNA requirements. These include, inter alia, statutory
specifications about (i) where and when sex offenders must register;
(ii) several categories of required registration information; (iii) how
long sex offenders must continue to register, including different
registration periods for sex offenders in different tiers and lifetime
registration for those in the highest tier; and (iv) a requirement to
appear periodically to verify the registration information. See 34
U.S.C. 20911(2)-(4), 20913, 20914(a)(1)-(7), 20915, 20918.
Other features of the rule reflect exercises of the Attorney
General's powers to implement SORNA's requirements. These include
additional specifications regarding information sex offenders must
provide, how and when they must report certain changes in registration
information, and the time and manner for complying with SORNA's
registration requirements by sex offenders who cannot comply with
SORNA's normal registration procedures. On these matters, however, the
rule embodies the same policies as those appearing in the previously
issued SORNA guidelines and prior rulemakings under SORNA.
The rule also makes no change in what registration jurisdictions
need to do to substantially implement SORNA in their registration
programs, a matter that will continue to be governed by the previously
issued guidelines for SORNA implementation.
While this rule does not make new policy, as discussed above, it is
expected to have a number of benefits. The rule will facilitate
enforcement of SORNA's registration requirements through prosecution of
noncompliant sex offenders under 18 U.S.C. 2250. By providing a
comprehensive articulation of SORNA's registration requirements in
regulations addressed to sex offenders, it will provide a more secure
basis for prosecution of sex offenders who engage in knowing violations
of any of SORNA's requirements. It will also resolve a number of
specific concerns that have arisen in past litigation or could be
expected to arise in future litigation, if not clarified and resolved
by this rule. For example, as discussed below, the amendment of Sec.
72.3 in the rule will ensure that its application of SORNA's
requirements to sex offenders with pre-SORNA convictions is given
effect consistently, resolving an issue resulting from the decision in
United States v. DeJarnette, 741 F.3d 971 (9th Cir. 2013).
Beyond the benefits to effective enforcement of SORNA's
requirements, the rule will benefit sex offenders by providing a clear
and comprehensive statement of their registration obligations under
SORNA. This statement will make it easier for sex offenders to
determine what they are required to do and thus facilitate compliance.
By facilitating the enforcement of, and compliance with, SORNA's
registration requirements, the rule will further SORNA's public safety
objectives. See 34 U.S.C. 20901. More consistent adherence to these
requirements will enable registration and law enforcement authorities
to better track and monitor released sex offenders in the community and
enhance the basis for public notification regarding registered sex
offenders that SORNA requires. See id. 20920, 20923.
Effective September 1, 2017, the provisions of SORNA, formerly
appearing at 42 U.S.C. 16901 et seq., were recodified in a new title 34
of the United States Code, and now appear at 34 U.S.C. 20901 et seq.
See <a href="http://uscode.house.gov/editorialreclassification/t34/index.html">http://uscode.house.gov/editorialreclassification/t34/index.html</a>.
United States Code citations of SORNA provisions in this rule
accordingly differ from the corresponding citations in earlier sources
and documents.
Rulemaking History
This rule is the tenth document the Attorney General has published
pursuant to the statutory directive to the Attorney General to issue
guidelines and regulations to interpret and implement SORNA. See 34
U.S.C. 20912(b). The previous SORNA-related documents are as follows:
(1) Interim rule entitled, ``Applicability of the Sex Offender
Registration and Notification Act,'' published at 72 FR 8894 (Feb. 28,
2007). The interim rule solicited public comments, and the comment
period ended on April 30, 2007. The interim rule added a new part 72 to
title 28 of the Code of Federal Regulations, entitled ``Sex Offender
Registration and Notification.'' The interim rule provided that ``[t]he
requirements of the Sex Offender Registration and Notification Act
apply to all sex offenders, including sex offenders convicted of the
offense for which registration is required prior to the enactment of
that Act.'' 28 CFR 72.3.
(2) Proposed guidelines, published at 72 FR 30210 (May 30, 2007),
whose general purpose was to provide guidance and assistance to
registration jurisdictions in implementing the SORNA standards in their
sex offender registration and notification programs. The proposed
guidelines solicited public comment, and the comment period ended on
August 1, 2007.
(3) Final guidelines for registration jurisdictions regarding SORNA
implementation entitled, ``The National Guidelines for Sex Offender
Registration and Notification'' (the ``SORNA Guidelines''), published
at 73 FR 38030 (July 2, 2008).
(4) Proposed supplemental guidelines for SORNA implementation,
published at 75 FR 27362 (May 14, 2010), whose general purpose was to
address certain issues arising in SORNA implementation that required
that some aspects of the SORNA Guidelines be augmented or modified. The
proposed supplemental guidelines solicited public comment, and the
comment period closed on July 13, 2010.
(5) Final rule entitled, ``Applicability of the Sex Offender
Registration and Notification Act,'' published at 75 FR 81849 (Dec. 29,
2010). This rule finalized the February 28, 2007, interim rule
providing for SORNA's applicability to all sex offenders, including
those with pre-SORNA convictions.
(6) Final supplemental guidelines for SORNA implementation
entitled, ``Supplemental Guidelines for Sex Offender Registration and
Notification'' (the ``SORNA Supplemental Guidelines''), published at 76
FR 1630 (Jan. 11, 2011).
(7) Proposed supplemental guidelines, published at 81 FR 21397
(Apr. 11, 2016), whose general purpose was to afford registration
jurisdictions greater flexibility in their efforts to substantially
implement SORNA's juvenile registration requirement. These proposed
supplemental guidelines solicited public comment, and the comment
period closed on June 10, 2016.
(8) Final supplemental guidelines regarding substantial
implementation of SORNA's juvenile registration requirement entitled,
``Supplemental Guidelines for Juvenile Registration Under the Sex
Offender Registration and Notification Act,'' published at 81 FR 50552
(Aug. 1, 2016).
(9) Proposed rule entitled, ``Registration Requirements Under the
Sex Offender Registration and Notification Act,'' published at 85 FR
49332 (Aug. 13, 2020). The proposed rule solicited public comments and
the comment period closed on October 13, 2020.
Summary of Comments
The Department of Justice received over 700 comments on this
rulemaking from individuals and organizations. Most of the comments
amounted to general criticisms of sex offender registration or SORNA.
Some of the
[[Page 69858]]
comments proposed specific changes to the provisions of the proposed
rule. Having carefully considered all comments, the Department of
Justice has concluded that the regulations in this rulemaking should be
promulgated without change from the proposed rule, except for amendment
of Sec. 72.8(a)(1)(i)-(ii) to specify the circumstances in which SORNA
violations may result in Federal criminal liability. The ensuing
discussion summarizes the principal issues that were raised in the
public comments.
General Comments
Most of the comments received amounted to general criticisms of sex
offender registration or associated public notification requirements.
Comments of this nature generally argued that sex offender registration
is of little or no value in protecting public safety and that any value
it may have is outweighed by adverse effects on sex offenders and their
families. Some comments in this class proposed that sex offender
registration be restricted, if not entirely eliminated, such as by
narrowly limiting the sex offenders or sex offenses for which
registration is required, ending disclosure of information about sex
offenders to the general public, setting shorter registration periods,
or providing broader means for terminating registration. Some of these
comments criticized requirements in this rule that track express
statutory requirements, including the statutory requirements relating
to the jurisdictions in which sex offenders must register, the
information sex offenders must provide, the duration of registration
periods, and reporting and verification of certain information through
in-person appearances. See 34 U.S.C. 20913-16, 20918.
These comments could not be accepted in this rulemaking because the
Attorney General has no authority to repeal the requirements enacted by
Congress in SORNA or the sex offender registration laws of non-Federal
jurisdictions. This rule interprets and implements SORNA, as directed
by 34 U.S.C. 20912(b). The Attorney General's regulatory authority
under SORNA does not include second-guessing the underlying legislative
policy judgments or nullifying the measures that Congress has adopted
in the law. See 73 FR at 38036.
Some comments criticized the rule's specification of registration
requirements which, wholly or in part, do not appear expressly in
SORNA. The matters criticized included requirements to provide
information about actual and purported dates of birth and Social
Security numbers, temporary lodging away from residence, passports and
immigration documents, and professional licenses. In addition to
comments criticizing the extent of the information required by the
rule, some comments in this class criticized requirements adopted by
the Attorney General to keep registration information up to date. These
include requirements to report in advance departure from a
jurisdiction, the requirement to report within three business days
changes relating to remote communication identifiers, temporary
lodging, and vehicle information, and the requirement to report
international travel at least 21 days in advance.
The Attorney General has adopted these measures in the exercise of
powers that SORNA provides to interpret and implement SORNA, specify
required registration information, and prescribe time-and-manner
requirements for providing and updating the information. See 34 U.S.C.
20912(b), 20914(a)(7)-(8), (c). Each of these measures is justified as
a means of furthering SORNA's objective of protecting the public from
sex offenders and offenders against children by establishing a
comprehensive national registration system, see id. 20901, or as a
means of implementing or enforcing SORNA's provisions. The specific
reasons for the various requirements are explained in the section-by-
section analysis below. The comments received provided no persuasive
grounds to abrogate or modify these requirements.
Some comments argued that SORNA or this rule are unconstitutional
on various grounds, such as the prohibitions of cruel and unusual
punishment, double jeopardy, and ex post facto laws, the right to
travel, and the requirement of due process. Claims of this nature are
familiar to the Department of Justice, having been raised in litigative
challenges to SORNA and rejected by the Federal courts. See, e.g.,
Willman v. Att'y Gen., 972 F.3d 819, 824-27 (6th Cir. 2020). The
comments provided no persuasive reason to believe that any aspect of
SORNA or this rule is unconstitutional.
Some comments objected to the application of SORNA's requirements
to sex offenders whose offenses or convictions predate SORNA, as
provided in Sec. 72.3 in this rule. Section 72.3 is necessary to
implement Congress's intent that SORNA apply to all sex offenders,
regardless of when they were convicted. See Reynolds v. United States,
565 U.S. 432, 442-45 (2012); id. at 448-49 & n. (Scalia, J.,
dissenting) (agreeing that Congress intended for SORNA to apply to all
sex offenders); Gundy v. United States, 139 S. Ct. 2116, 2123-30 (2019)
(plurality opinion). The section-by-section analysis below provides
further explanation of the provisions and rationale of Sec. 72.3.
Some comments objected to substantive restrictions imposed on sex
offenders in some jurisdictions, such as restrictions on where they can
live, prohibitions of proximity to schools or children, or exclusion
from some types of employment. These comments are not germane to this
rule, which articulates SORNA's registration requirements for sex
offenders, because SORNA's requirements are informational in nature and
do not restrict where sex offenders can go or what they can do. See 73
FR at 38032. A similar response applies to comments that were critical
of requirements under other laws that identification documents, such as
passports and drivers' licenses, include notations identifying the
holders as sex offenders. These comments are misdirected in relation to
this rule because SORNA does not impose such requirements, and, where
they are prescribed by other laws, the Attorney General has no
authority to rescind or modify them by rulemaking.
Some comments criticized public disclosure of information about sex
offenders, arguing that access to information in the sex offender
registries should be limited to law enforcement or otherwise narrowly
restricted. These comments concern the scope of disclosure of sex
offender information by registration jurisdictions and, as such, are
not germane to this rule, which concerns SORNA's registration
requirements for sex offenders. Disclosure of sex offender information
is separately addressed in statutory provisions that are not implicated
by this rulemaking and in the SORNA Guidelines and SORNA Supplemental
Guidelines. See 34 U.S.C. 20916(c), 20920, 20922-23; 73 FR at 38042,
38058-61; 76 FR at 1632-33, 1636-37.
Some comments supported issuance of this rule. The benefits
perceived by these commenters included protecting public safety,
clarifying SORNA's registration requirements for sex offenders, and
promoting compliance with those requirements.
A Comment Proposing 10 Changes in the Rule
A lengthy comment proposed 10 specific changes in the rule:
(i) The comment proposed that the rule and each discrete
requirement therein should be revised to say that registrants need only
comply when
[[Page 69859]]
circumstances supporting Federal jurisdiction are present. Section
72.8(a)(1)(i)-(ii) in the final rule reproduces the required
jurisdictional circumstances under 18 U.S.C. 2250, making clear the
conditions that must be satisfied to support Federal criminal liability
for SORNA violations. It would be misleading or incorrect to state that
sex offenders need not comply with the requirements set forth in this
rule in a broader sense, absent grounds supporting Federal
jurisdiction, because those requirements are widely paralleled in the
sex offender registration laws of the states and other non-Federal
jurisdictions. See National Institute of Justice, Tracking Sex
Offenders: Federal Law, Resources Have Led to Marked Improvement of
State Registries, But More Work Is Needed (Nov. 13, 2020) (``At least
half the states met implementation thresholds for 13 of the 14 SORNA
standard areas; 75% of the states met the thresholds for at least nine
areas; and 92% of the states met them for at least half of the SORNA
areas.''). Sex offenders accordingly may be subject to criminal
penalties under state law for violating these requirements, regardless
of whether grounds for Federal jurisdiction exist. While Sec.
72.8(a)(1)(i)-(ii) has been revised in the final rule to state
explicitly the scope of Federal jurisdiction to prosecute SORNA
violations under 18 U.S.C. 2250, the comment was not persuasive that
the jurisdictional limitation should be referenced repeatedly
throughout the rule, since the statement in Sec. 72.8(a)(1)(i)-(ii) is
clear.
(ii) The comment proposed that the rule incorporate a clear
statement that a registrant's duty to act under SORNA arises only when
the registrant travels interstate and that travel has a nexus to the
alleged SORNA violation. In referring to a registrant's ``duty'' to
act, the comment apparently meant amenability to Federal prosecution
under 18 U.S.C. 2250 in case of a violation. The proposed change is
legally incorrect. The grounds of Federal jurisdiction under section
2250 include grounds other than interstate travel, such as conviction
for a Federal sex offense or travel in foreign commerce, and section
2250 specifies no required ``nexus'' between interstate travel and the
charged SORNA violation beyond the temporal sequencing implied by the
provision's language and structure. See Carr v. United States, 560 U.S.
438, 446 (2010).
(iii) The comment argued, based on the Supreme Court's decision in
Nichols v. United States, 136 S. Ct. 1113 (2016), that the rule's
requirements to report departure from a jurisdiction and termination of
residence in a jurisdiction under Sec. 72.7(d) and (g) exceed the
Attorney General's powers under 34 U.S.C. 20914(a) and (c). Adopting
these requirements is within the Attorney General's powers under SORNA,
and consistent with the Nichols decision, as explained in the section-
by-section analysis below.
(iv) The comment proposed that the rule state that Sec. 72.7(g)
absolves registrants of a duty to report information required by SORNA
when state law or the local agency does not require that information.
The proposed statement is legally incorrect because SORNA's
requirements exist independently of state law requirements, see
Willman, 972 F.3d at 821-24, and it is not needed to avoid unfairness
to sex offenders based on differences between SORNA's requirements and
state law requirements. Section 72.8(a)(1)(iii) in this rule explains
that sex offenders are not held liable under 18 U.S.C. 2250 for
violation of registration requirements of which they are unaware, and
noncompliance with SORNA may be excused where compliance is prevented
by circumstances beyond their control, such as a jurisdiction's failure
to carry out a necessary complementary role. These principles apply to
all requirements under SORNA, including the requirement of Sec. 72.6
to provide specified types of information for inclusion in the
registry. Hence, a sex offender is not held liable for failing to
provide a type of information if he is unaware of a requirement to
provide that information, as may be the case if a jurisdiction does not
request that information in its registration forms, and failure to
provide any type of information may be excused if a jurisdiction will
not accept that information for inclusion in its registry.
(v) The comment asserted that the interpretation of the affirmative
defense of 18 U.S.C. 2250(c), in the analysis statement's discussion of
Sec. Sec. 72.7(g) and 72.8, violates due process because it shifts the
burden of proof to defendants. However, Sec. 72.8(a)(1)(iii) explains
that liability under 18 U.S.C. 2250(a)-(b) is conditioned on the
defendant's being aware of the requirement he is charged with
violating. The regulation and the accompanying analysis do not impose
on the defendant a burden of proving that he lacked such awareness.
Section 72.8(a)(2) states that there is an affirmative defense to
liability for noncompliance with SORNA in certain circumstances,
pursuant to 18 U.S.C. 2250(c). The regulation and the accompanying
discussion do not change the burden of proof on this defense, which
Congress has expressly made an ``affirmative defense.'' Id.
(vi) The comment asserted that Sec. 72.6(b), requiring the
reporting of remote communication identifiers, violates the First
Amendment on grounds of ambiguity and because, the comment claimed, it
infringes on the right to anonymous speech unless accompanied by
restrictions on public disclosure of the identifiers. The rule's
specification of covered identifiers is similar to a statutory
definition in 34 U.S.C. 20916(e)(2) and sufficiently definite. The
conditions for disclosure of sex offender information by registration
jurisdictions are beyond the scope of this rulemaking, which concerns
the registration requirements for sex offenders under SORNA. Separate
statutory provisions and the SORNA Guidelines and SORNA Supplemental
Guidelines specify those conditions, which include restrictions on the
disclosure of remote communication identifiers. See 34 U.S.C. 20916(c);
73 FR at 38059-60; 76 FR at 1633, 1637.
(vii) The comment asserted that Sec. 72.8 is deficient because it
does not expressly refer to the required jurisdictional predicates
under 18 U.S.C. 2250. As formulated in this final rule, Sec. 72.8 sets
forth those jurisdictional predicates.
(viii) The comment asserted that the rule is impermissibly vague in
a number of respects, including its definition of remote communication
identifiers, the requirement that sex offenders lacking fixed residence
addresses or places of employment report the relevant locations with
whatever definiteness is possible under the circumstances, the
requirement that sex offenders report information concerning places
they are staying when away from their residences for seven or more
days, and the meaning of a ``clean record'' that may reduce the
registration period for certain sex offenders. However, the
specification of covered remote communication identifiers in Sec.
72.6(b) is similar to a statutory definition in 34 U.S.C. 20916(e)(2)
and sufficiently definite. Where sex offenders do not have definite
places of residence or employment, the information they provide under
Sec. 72.6(c)(1) and (c)(3) as to where they are living or working must
be of a less definite nature, and it is reasonable to require that the
information be provided with whatever definiteness is possible under
the circumstances. The matter is further explained in the section-by-
section analysis below and in 73 FR at 38056. The information required
by Sec. 72.6(c)(2)
[[Page 69860]]
is ``temporary lodging information'' and a related provision, Sec.
72.7(e), requires sex offenders to report this information to their
residence jurisdictions within three business days. The two provisions
adequately convey that a sex offender, within three business days of
returning to his residence, must report to the residence jurisdiction
the places he has lodged while away from his residence for seven or
more days. Section 72.5(c) refers to a ``clean record'' as described in
34 U.S.C. 20915(b)(1), so the meaning set forth in that statutory
provision applies.
(ix) The comment proposed that Sec. 72.5(c) should clarify that
clean record reductions for tier I offenders and (juvenile delinquent)
tier III offenders are automatic. Section 72.5(c) states that
satisfaction of the clean record requirement reduces the registration
period for the affected classes of sex offenders. The conditions a sex
offender must satisfy to effect such a reduction are those specified in
the applicable statute: ``(A) not being convicted of any offense for
which imprisonment for more than 1 year may be imposed; (B) not being
convicted of any sex offense; (C) successfully completing any periods
of supervised release, probation, and parole; and (D) successfully
completing of [sic] an appropriate sex offender treatment program
certified by a jurisdiction or by the Attorney General.'' 34 U.S.C.
20915(b)(1).
(x) The comment stated that the rule should be revised to include a
federalism assessment and other requirements under Executive Order
13132 and the Unfunded Mandates Reform Act. However, the relevant
regulatory certifications below are correct as they are. This rule
satisfies the requirements of Executive Order 13132 and the Unfunded
Mandates Reform Act.
A Comment Proposing 13 Changes or Sets of Changes in the Rule
Another comment proposed the following changes in the rule:
(i) The comment argued that Sec. 72.5, relating to the duration of
the registration period under SORNA, should be changed in various ways.
It first argued that Sec. 72.5 as drafted conflicts with a provision
of the Fair Credit Reporting Act, which, the comment asserted, states
that arrests and convictions may only be reported on background checks
for seven years after release from prison. The reference is apparently
to 15 U.S.C. 1681c, which generally ``prohibits [consumer] reporting
agencies from disclosing any arrest record or other adverse item more
than seven years old but permits them to report `records of convictions
of crimes' no matter how long ago they occurred.'' Aldaco v. RentGrow,
Inc., 921 F.3d 685, 687 (7th Cir. 2019) (quoting 15 U.S.C. 1681c(a)).
Section 72.5 describes the duration of registration required by SORNA.
See 34 U.S.C. 20915. It does not affect what may be included in
consumer reports and does not conflict with the Fair Credit Reporting
Act. The comment also stated that Sec. 72.5 should be changed to
establish standardized procedures for determining sex offenders' tiers,
how long each offender will remain on the registry, and what
restrictions can be placed on registrants in compliance with their
constitutional rights, and should create a way for tier II offenders to
petition for early removal from the registry. The procedures for
registration jurisdictions to determine sex offenders' tiers are
outside the scope of this rulemaking, but the SORNA Guidelines provide
related guidance. See 73 FR at 38052-54. The duration of registration
under SORNA is governed by statutory criteria, see 34 U.S.C. 20915, and
cannot be changed by rulemaking. The statutes include no provision for
reducing the registration periods of tier II offenders. Id. Assessing
what restrictions can constitutionally be placed on sex offenders, such
as restrictions on where sex offenders may live or work, is outside the
scope of this rulemaking, which concerns SORNA's registration
requirements for sex offenders.
(ii) The comment criticized Sec. 72.6(b), relating to remote
communication identifiers, as likely violating the First Amendment and
overly vague. The comment provided no persuasive reason to believe that
Sec. 72.6(b) is unconstitutional. The description of covered remote
communication identifiers in Sec. 72.6(b) is similar to a statutory
definition appearing in 34 U.S.C. 20916(e)(2) and sufficiently
definite.
(iii) The comment claimed that Sec. 72.6(c)(2)'s requirement to
report temporary lodging information violates a constitutional right to
travel because, the comment asserted, most places of lodging will not
knowingly allow sex offenders to stay at their locations if a sex
offender's travel plans are disclosed to them. The rule requires sex
offenders to report temporary lodging information within three business
days, not in advance, and it requires reporting of the information to
the sex offender's residence jurisdiction, not the premises where he
intends to stay. See Sec. 72.7(e). The comment provided no persuasive
reason to believe that this requirement violates any constitutional
right.
(iv) The comment proposed to eliminate Sec. 72.6(c)(3), on the
ground that disclosure of sex offenders' employment information will
adversely affect the employers and adversely affect the sex offenders'
ability to obtain employment. Section 72.6 only requires sex offenders
to provide employment information to registration jurisdictions. It
does not address the public disclosure of such information and, more
broadly, the conditions for disclosure of information about sex
offenders are outside the scope of this rulemaking. The SORNA
Guidelines separately address the disclosure of sex offender
information, including employment information. See 73 FR at 38042-43,
38059.
(v) The comment claimed that Sec. 72.6(c)(4)'s requirement to
provide school attendance information violates a right to attend public
schools without hindrance from the government and a First Amendment
right of free association because, the comment asserted, most colleges
and universities will not allow registered sex offenders to enroll.
However, SORNA requires school attendance information, see 34 U.S.C.
20914(a)(5), and that requirement cannot be abrogated by rulemaking.
Section 72.6(c)(4) requires sex offenders to provide school attendance
information for inclusion in the registries. It does not require or
encourage schools to deny enrollment to registered sex offenders, and
any schools that have such a policy would potentially deny admission to
registered sex offenders regardless of whether SORNA or this rule
requires sex offenders to provide school attendance information for
inclusion in the registries. The comment provided no persuasive reason
to believe that this requirement violates any provision of the
Constitution.
(vi) With respect to Sec. 72.6(d), which requires reporting of
international travel information, the comment stated that the U.S.
government should be prohibited from providing travel plans to foreign
nations. Congress made a contrary judgment in International Megan's
Law, whose purposes include, as stated in its title, ``[t]o protect
children and others from sexual abuse and exploitation, including sex
trafficking and sex tourism, by providing advance notice of intended
travel by registered sex offenders outside the United States to the
government of the country of destination''. Public Law 114-119; see Doe
v. Kerry, Case No. 16-cv-0654-PJH, 2016 WL 5339804 (N.D. Cal. Sept. 23,
2016), appeal dismissed, No. 16-17100, 2017 WL 5514566 (9th Cir. 2017)
[[Page 69861]]
(explaining the background and purposes of International Megan's Law
and rejecting a constitutional challenge).
(vii) The comment claimed that Sec. 72.6(g)'s requirement to
disclose professional licenses violates a right to engage in commerce
because states may revoke such licenses if notified that the licensee
is a registered sex offender. The rule does not require states to
revoke professional licenses issued to registered sex offenders.
Whether and to what extent criminal histories including sex offenses
should be disqualifying for professional licenses, such as licenses to
teach children or to be care providers for persons in vulnerable
populations, are matters for the states' judgment. The comment provided
no persuasive reason to believe that requiring sex offenders to report
professional licenses is unconstitutional.
(viii) With respect to Sec. 72.8, the comment asserted that the
jurisdictional predicate of travel in interstate or foreign commerce in
18 U.S.C. 2250 should be interpreted to apply only on the basis of
business-related travel. There is no basis for such a restriction; it
would depart from the interpretation of travel in interstate or foreign
commerce in other federal laws; and it would conflict with SORNA's
objective of reliably tracking sex offenders as they relocate among
jurisdictions or travel abroad.
(ix) With respect to Sec. 72.6(c)(3), which requires sex offenders
to report the names and addresses of places of employment, the comment
argued that this information should not be made public. The matter is
outside the scope of this rulemaking, which concerns the registration
requirements for sex offenders under SORNA, not the conditions for
disclosure of sex offender information by registration jurisdictions.
The SORNA Guidelines address the latter issue, including disclosure of
employment information. See 73 FR at 38042-43, 38059.
(x) The comment took issue with the regulatory certification below
relating to Executive Orders 12866 and 13563. The comment assumed that
the requirements in this rule are new requirements and hence will
result in increased costs for sex offenders and registration
jurisdictions. The premise is incorrect. As the regulatory
certification explains, there are no new costs for registration
jurisdictions because their requirements under SORNA continue to be
those articulated in the previously issued SORNA Guidelines and SORNA
Supplemental Guidelines. Likewise, for sex offenders, the requirements
articulated in the rule either appear expressly in SORNA or have
previously been articulated by the Attorney General in the SORNA
Guidelines and SORNA Supplemental Guidelines. This rule will not change
the registration procedures of the registration jurisdictions or make
those procedures more time-consuming or expensive. There is accordingly
no reason to change the relevant regulatory certification.
(xi) The comment took issue with the regulatory certification below
relating to Executive Order 13132 (Federalism), claiming that this rule
will have a significant impact on the relationship between the states
and the Federal government by creating Federal criminal penalties for
sex offenders who violate SORNA's requirements and by creating funding
reductions for states that do not implement SORNA's requirements in
their registration programs. The premise of this comment is incorrect
because the relevant Federal criminal penalties and funding incentive
have existed since SORNA's enactment in 2006. See 18 U.S.C. 2250; 34
U.S.C. 20927.
(xii) The comment took issue with the regulatory certification
relating to subtitle E of title II of the Small Business Regulatory
Enforcement Fairness Act of 1996 (the ``Congressional Review Act''),
assuming that the rule will result in novel requirements to provide and
disclose sex offenders' employment information with adverse effects on
sex offenders and their employers. The assumption is incorrect because
the requirements relating to employment information have existed for
many years in SORNA and the SORNA Guidelines. See 34 U.S.C.
20914(a)(4); 73 FR 38042-43, 38059.
(xiii) With respect to Sec. 72.6(c)(2), the comment stated that
the rule must forbid a sex offender's home jurisdiction from routinely
notifying a jurisdiction to which a registrant plans to travel or
notifying a place of lodging that a registrant plans to stay there. The
comment argues that such notification violates a constitutional right
to travel because the destination jurisdictions may impose unwanted
requirements and restrictions on sex offenders if it is known they are
coming and the temporary lodging providers may not allow registered sex
offenders to stay on their properties. However, the rule requires sex
offenders to report temporary lodging information within three business
days, not in advance. See Sec. 72.7(e). If the residence jurisdiction
knows about the sex offender's travel plans in advance anyway, and
conveys the information to the destination jurisdiction or persons
therein, no persuasive reason appears to believe that doing so is
unconstitutional. Be that as it may, this rule concerns the
registration requirements for sex offenders under SORNA, and the
conditions for disclosure of information about sex offenders by
registration jurisdictions, including temporary lodging information,
are outside of its scope. The SORNA Guidelines separately address the
conditions for such disclosure. See 73 FR at 38058-61.
A Comment Proposing 24 Changes in the Rule
Another comment proposed 24 changes in the rule:
(i) With respect to Sec. 72.1, the comment stated that subsection
(b) should be revised to allow states to adopt requirements less
stringent than SORNA without fear of losing federal funds, or
alternatively, clarify the existing rule that states may adopt
registration requirements that are substantially similar to SORNA. The
matter is outside the scope of this rulemaking, which is concerned with
the registration requirements for sex offenders under SORNA, not the
requirements for registration jurisdictions. The funding reduction or
reallocation for jurisdictions that do not substantially implement
SORNA is a statutory matter and cannot be abrogated by rulemaking. See
34 U.S.C. 20927. The SORNA Guidelines and SORNA Supplemental Guidelines
explain the substantial implementation requirement and the funding
incentive. See 73 FR at 38047-48; 76 FR at 1638-39.
(ii) With respect to Sec. 72.3, the comment proposed removing the
application of SORNA based on pre-SORNA offenses, or specifying that
SORNA does not apply to sex offenders not already required to register
prior to SORNA's enactment. That conflicts with Congress's intent that
SORNA apply to all sex offenders, regardless of when they were
convicted, as discussed above and in the section-by-section analysis
below.
(iii) With respect to Sec. 72.5, the comment proposed clarifying
that classification of sex offenders should be based upon the risk
posed by offenses as represented by tier levels, and revising
subsection (c) to allow reductions for all levels consistent with
scientific research or recidivism risk. SORNA specifies the criteria
for its tier classifications and the conditions for reducing
registration periods. See 34 U.S.C. 20911(2)-(4); 20915. These matters
are determined by statute and cannot be changed by rulemaking.
(iv) With respect to Sec. 72.6(b), relating to remote
communication identifiers, the comment proposed clarifying that IP
[[Page 69862]]
addresses are not required and proposed stating that requiring
telephone numbers of ``known associates'' is a violation of privacy
laws. Section 72.6(b) requires that sex offenders provide the
designations they use for purposes of routing or self-identification in
internet or telephonic communications or postings, including email
addresses and telephone numbers. The specification of required
information, which is similar to a statutory definition appearing in 34
U.S.C. 20916(e)(2), is sufficiently clear as drafted, and does not
require sex offenders to provide IP addresses or the telephone numbers
of ``known associates.''
(v) With respect to Sec. 72.6(c), relating to provision of
information concerning residence, temporary lodging, employment, and
school attendance, the comment proposed providing grace periods for
registration to reflect that loss of housing and employment can occur
without warning and that it may take time to locate a replacement.
SORNA and the rule generally allow three business days to report
changes in residence, employment, and school attendance, or temporary
lodging information. See Sec. 72.7(c), (e). There is no need to
stipulate a ``grace period'' for sex offenders who have nothing within
the scope of Sec. 72.6(c) to report, as may be the case with a sex
offender who has just lost his residence or job and has no expectation
about where he will be living or working in the future.
(vi) The comment proposed eliminating Sec. 72.6(c)(2), relating to
temporary lodging information, or alternatively, specifying that this
information is not part of the public record and may not be promulgated
by third-party sites without penalty. The section-by-section analysis
below explains the justification for requiring temporary lodging
information. The conditions for public disclosure of information about
sex offenders by registration jurisdictions, including temporary
lodging information, are outside the scope of this rulemaking, which is
concerned with the registration requirements for sex offenders under
SORNA. The SORNA Guidelines separately address disclosure of sex
offender information by registration jurisdictions and do not require
registration jurisdictions to disclose sex offenders' temporary lodging
information on the public sex offender websites. See 73 FR at 38059.
The Attorney General has no authority to create penalties for third-
party sites that disclose sex offenders' temporary lodging information.
(vii) With respect to Sec. 72.6(c)(3), relating to employment
information, the comment proposed defining place of employment. Section
72.6(c)(3) is sufficiently clear as drafted, requiring the name and
address of any place where a sex offender is or will be an employee or,
for sex offenders who are or will be employed but with no fixed place
of employment, other information describing where the sex offender
works or will work with whatever definiteness is possible under the
circumstances. In referring to place of employment, the language of
Sec. 72.6(c)(3) tracks the statutory requirement that sex offenders
provide ``[t]he name and address of any place where the sex offender is
an employee or will be an employee,'' 34 U.S.C. 20914(a)(4).
(viii) With respect to Sec. 72.6(c)(1), the comment proposed
defining residence, specifically asking how a person registers a
residence address if he is transient or homeless. The comment
identified no lack of clarity in Sec. 72.6(c)(1) that would require
further definition. A person who has no residence address cannot, of
course, report a residence address. For such situations, Sec.
72.6(c)(1) provides that ``if the sex offender has no present or
expected residence address,'' then the sex offender must provide
``other information describing where the sex offender resides or will
reside with whatever definiteness is possible under the
circumstances.''
(ix) With respect to Sec. 72.6(d) and (e), relating to information
about international travel and passports and immigration documents, the
comment proposed that the rule prohibit this information from becoming
part of the public record. The conditions for public disclosure by
registration jurisdictions of information about sex offenders,
including information about their international travel and their
passports and immigration documents, are outside the scope of this
rulemaking, which concerns the registration requirements for sex
offenders under SORNA. Disclosure of sex offender information is
addressed in statutes not implicated by this rulemaking and in the
SORNA Guidelines and SORNA Supplemental Guidelines, which do not
require inclusion of international travel, passport, and immigration
document information on the public sex offender websites. See 73 FR at
38059.
(x) With respect to Sec. 72.6(f), relating to vehicle information,
the comment asked for evidence that watercraft and aircraft have been
used in the commission of sexual offenses to justify the collection of
information about such vehicles. As the section-by-section analysis
below explains, vehicle information may be useful to help prevent
flight, facilitate investigation, or effect an apprehension if a sex
offender commits new offenses or violates registration requirements.
This rationale applies to watercraft and aircraft, as well as land
vehicles, whether or not the particular vehicles are used in committing
sex offenses.
(xi) The comment proposed to specify in Sec. 72.6(g), relating to
information about professional licenses, that professional licensing
shall not be denied based on conviction for a sexual offense unless it
has a relationship to the responsibilities of the job. SORNA imposes no
professional or occupational disqualifications on sex offenders, and
the matter is outside the scope of this rulemaking, which concerns the
registration requirements for sex offenders under SORNA. The Attorney
General has no authority to prohibit or restrict any professional or
occupational disqualifications for sex offenders that states may adopt.
(xii) The comment said that Sec. 72.6 should be revised because
SORNA does not require public disclosure of certain types of
information about sex offenders, mentioning specifically employer name,
information about tier I sex offenders (not convicted of a specified
offense against a minor), and non-sexual offenses. The requirements and
exceptions for public disclosure of information about sex offenders by
registration jurisdictions are outside the scope of this rulemaking,
which concerns the registration requirements for sex offenders under
SORNA, and they are not within the subject matter of Sec. 72.6, which
identifies types of information sex offenders must provide for
inclusion in the registries. Public disclosure of sex offender
information is separately addressed in statutes not germane to this
rulemaking and in the SORNA Guidelines and SORNA Supplemental
Guidelines, which do not require registration jurisdictions to include
on their public sex offender websites the types of information
referenced in this part of the comment. See 73 FR at 38059.
(xiii) The comment said that the regulations should require
accurate information (about sex offenders), provide penalties for
inaccurate information or for use of the information to harm the family
of the person required to register, and discourage third-party
dissemination of information. These matters are outside the scope of
this rulemaking, which concerns the registration requirements for sex
offenders under SORNA. SORNA independently directs registration
jurisdictions to ``include instructions on
[[Page 69863]]
how to seek correction of information that an individual contends is
erroneous'' on their public sex offender websites. 34 U.S.C. 20920(e).
It further directs that these websites ``shall include a warning that
information on the site should not be used to unlawfully injure,
harass, or commit a crime against any individual named in the registry
or residing or working at any reported address,'' and that ``[t]he
warning shall note that any such action could result in civil or
criminal penalties.'' Id. Sec. 20920(f).
(xiv) With respect to Sec. 72.7(b), regarding periodic in-person
verification of registration information, the comment proposed
providing an alternative to in-person verification in instances of
natural disasters. The in-person verification requirement is statutory,
see 34 U.S.C. 20918, and cannot be changed by rulemaking. However,
Sec. 72.8(a)(2) in this rule explains that noncompliance with SORNA's
requirements (including its in-person appearance requirements) may be
excused if compliance is prevented by circumstances beyond the sex
offender's control, circumstances that could include the exigencies
presented in natural disasters.
(xv) With respect to Sec. 72.8, regarding criminal liability under
18 U.S.C. 2250, the comment proposed (a) providing that the penalty for
state violations shall be governed by state law, (b) providing a
defense for individuals compliant with state law, and (c) providing a
defense for persons with out-of-state convictions who fail to register
through good-faith belief that registration is not required. These
proposed changes are in part legally incorrect and in part already
covered. Congress enacted SORNA's criminal provision to provide Federal
criminal penalties for both state and Federal sex offenders who violate
SORNA's requirements under circumstances supporting Federal
jurisdiction. See 18 U.S.C. 2250(a)-(b); 34 U.S.C. 20911(1), (5)-(8).
SORNA's requirements apply to both state and Federal sex offenders
regardless of whether they are paralleled in state law registration
requirements. See Willman, 972 F.3d at 821-24 and Sec. 72.3 in this
rule. As provided in Sec. 72.8(a)(1)(iii), sex offenders are not
subject to liability under 18 U.S.C. 2250 for violating registration
requirements of which they are unaware, a limitation that applies
regardless of whether their convictions are in-state or out-of-state.
(xvi) The comment proposed establishing that these regulations are
not intended to replace the legislative process. With respect to the
Federal legislative process, this rule interprets and implements
Congress's decisions in SORNA, see 34 U.S.C. 20912(b), and does not
supplant or replace them. Rather, the many comments proposing that this
rule abrogate SORNA's requirements seek the replacement of the Federal
legislative process with inconsistent rulemaking. The Attorney
General's actions in this rulemaking are not exercises of Federal
legislative power barred by the non-delegation doctrine, as explained
in the section-by-section analysis below. With respect to state
legislative processes, the Attorney General has no authority over what
state legislatures choose to do and cannot replace their processes by
rulemaking.
(xvii) The comment proposed providing that (state) judicial
precedents apply in the case of any rules that conflict with state
supreme court decisions. State judicial decisions finding state
registration laws to be in conflict with the state constitution do not
affect the validity of the corresponding requirements under SORNA.
However, SORNA allows such decisions to be taken into account in
determining whether states have substantially implemented SORNA's
requirements in their registration programs. See 34 U.S.C. 20927(b).
(xviii) The comment proposed clarification of the process for
classification of out-of-state offenders. The process by which states
classify out-of-state offenders is outside the scope of this
rulemaking, which concerns the registration requirements for sex
offenders under SORNA. The SORNA Guidelines provide guidance to the
states and other registration jurisdictions regarding the application
of SORNA's tiering criteria to all sex offenders, including out-of-
state offenders. See 73 FR at 38052-54.
(xix) The comment proposed discouraging the inclusion of non-
essential information in the public sex offender websites. The matter
is outside the scope of this rulemaking, which concerns the
registration requirements for sex offenders under SORNA. Other
provisions of SORNA and the SORNA Guidelines and SORNA Supplemental
Guidelines address the types of information that should or should not
be included on the public websites, or whose inclusion or exclusion is
within the discretion of the registration jurisdictions. See 34 U.S.C.
20920; 73 FR at 38058-61; 76 FR at 1636-37.
(xx) The comment proposed encouraging states to provide penalties
for vigilantism. All states already have criminal penalties for
unlawful violence against persons, including sex offenders, whether by
vigilantes or others, and the Department of Justice rejects and
condemns all unlawful violence against persons, including sex
offenders. SORNA's standards provide that public sex offender websites
``shall include a warning that information on the site should not be
used to unlawfully injure, harass, or commit a crime against any
individual named in the registry or residing or working at any reported
address'' and ``note that any such action could result in civil or
criminal penalties.'' 34 U.S.C. 20920(f).
(xxi) The comment proposed encouraging states to use risk
assessment and other proven methods for the identification, treatment,
and termination of low-risk offenders. The criteria for classification
of sex offenders and early termination of registration are statutory
and cannot be changed by rulemaking. See 34 U.S.C. 20911(2)-(4), 20915.
Assessment of sex offenders for purposes of treatment is outside the
scope of this rulemaking, which concerns the registration requirements
for sex offenders under SORNA.
(xxii) The comment proposed discouraging states from utilizing
residency restrictions or other proximity restrictions. SORNA does not
prescribe or encourage residency or other proximity restrictions, and
the matter is outside the scope of this rulemaking, which concerns the
registration requirements for sex offenders under SORNA.
(xxiii) The comment proposed discouraging states from lifetime
registration for all, and instead recommending adoption of SORNA's
tiered registration periods as provided in Sec. 72.5. SORNA's
requirements generally constitute a floor rather than a ceiling for
state registration programs. See 73 FR at 38032-35, 38046. Whether
registration jurisdictions choose to adopt more stringent registration
requirements than SORNA's minimum national standards, including longer
registration periods, is a matter within their discretion. See id.
Recommending that states go no further than SORNA's requirements is not
necessary for the purposes of this rulemaking, which articulates the
registration requirements for sex offenders under SORNA, and the
comment was not persuasive that the rule should incorporate such a
recommendation. In responding to public comments of a similar nature,
the SORNA Guidelines noted that ``many jurisdictions have adopted
durational requirements for registration that . . . may . . . exceed
the . . . SORNA minimum . . . such as making lifetime registration the
norm in relation to registrants generally.'' 73 FR at 38034.
Consequently, ``taking the SORNA standards as a ceiling . . . would
require many jurisdictions to reduce or
[[Page 69864]]
eliminate requirements that they were free to adopt . . . and currently
apply,'' which ``is not plausibly the objective of a law (SORNA)
enacted with the general purpose of strengthening sex offender
registration and notification in the United States.'' Id.
(xxiv) The comment proposed providing that International Megan's
Law, residency restrictions, and other regulatory measures only apply
for the duration of registration. International Megan's Law added the
international travel reporting requirements of SORNA and related
authorities, appearing in 34 U.S.C. 20914(a)(7), (c) and implemented by
Sec. Sec. 72.6(d), 72.7(f) of this rule. In common with the other
requirements under SORNA appearing in this rule, those requirements
continue to apply until the end of the SORNA registration period.
Whether registration jurisdictions choose to impose such requirements
for longer periods than the registration periods prescribed by SORNA is
within their discretion. See 73 FR at 38046. Residency restrictions,
where they exist, are based on the laws of the jurisdictions that
choose to adopt them. SORNA does not require such restrictions, the
Attorney General has no authority to specify their duration, and they
are outside the scope of this rulemaking.
A Comment Proposing Five Changes in the Rule
Another comment proposed five changes in the rule:
(i) The comment stated that the Attorney General should disclose
all ``ex parte contacts'' with United States Attorneys because, the
comment asserted, some parts of the rule (such as Sec. 72.3) appear to
be targeting common defenses raised by sex offenders accused of failing
to register and hence may be the product of litigation strategy rather
than reasoned rulemaking. The comment reflects a false opposition
between addressing issues that have arisen in litigation and reasoned
rulemaking. This rulemaking carries out a statutory directive to the
Attorney General to issue regulations to interpret and implement SORNA,
see 34 U.S.C. 20912(b), in furtherance of SORNA's objective of
protecting the public from sex offenders by establishing a
comprehensive national system for their registration, see id. 20901. In
carrying out this responsibility, the Attorney General reasonably
resolves issues and problems that have arisen in SORNA implementation,
including those arising in the enforcement of SORNA by means of the
criminal provision Congress has enacted for that purpose, 18 U.S.C.
2250.
(ii) The comment said that the rule, for fair notice reasons,
should specify that other uncodified legislative rules imposing
registration duties on sex offenders under SORNA are abrogated. The
comment did not identify ``legislative rules'' outside of these
regulations that it was referring to or provide a persuasive reason for
declaring that such rules are abrogated. This rule encompasses all
current regulations issued by the Attorney General under SORNA. The
other SORNA-related final documents the Attorney General has published
in the Federal Register, listed in the ``rulemaking history'' section
above, are guidelines that provide guidance and assistance to
registration jurisdictions in implementing SORNA. Section
72.8(a)(1)(iii) in this rule moots fair notice concerns by explaining
that sex offenders are not held liable under 18 U.S.C. 2250 for
violating registration requirements of which they are unaware.
(iii) The comment said that the Attorney General, for Tenth
Amendment and fair notice reasons, should specify that states are
permitted to impose less stringent registration requirements than
SORNA's standards and that registrants fully comply with SORNA by
complying with state registration laws even if the state has not
implemented SORNA. However, this rule articulates SORNA's registration
requirements for sex offenders; it does not compel states to do
anything. States are afforded a funding incentive to substantially
implement SORNA's requirements in their registration programs, a
statutory condition that cannot be abrogated by rulemaking. See 34
U.S.C. 20927. Section 72.8(a)(1)(iii) in this rule moots fair notice
concerns by explaining that sex offenders are not held liable under 18
U.S.C. 2250 for violating requirements of which they are unaware, and
Sec. 72.8(a)(2) further explains that noncompliance with SORNA may be
excused where compliance was prevented by a state's failure to carry
out a necessary complementary role. The notion that sex offenders need
only comply with SORNA's registration requirements where state law
imposes the same requirements is incorrect as a matter of law. See
Willman, 972 F.3d at 821-24.
(iv) Section 72.5(b) in the rule states that the registration
period of a sex offender sentenced to imprisonment begins to run when
he is released from custody. The comment asserted to the contrary that
a sex offender's registration period begins to run when the registrant
is convicted, for three reasons. First, the comment argued that there
is no reason to suspend the running of the registration period during
the sex offender's initial confinement. This argument is question-
begging because it assumes that the registration period is already
running before the sex offender is released. Second, the comment
asserted that Sec. 72.5(b)'s interpretation of SORNA is implausible
because it would mean that a sex offender must initially register
before the registration period has begun, given the requirement of 34
U.S.C. 20913(b)(1) that a sex offender initially register before
completing his sentence of imprisonment. However, SORNA logically
requires that a sex offender be advised of his registration obligations
and initially registered shortly before his release from custody, see
34 U.S.C. 20919(a), because that is the point at which he is about to
be released into the community and the post-release tracking and
notification functions of sex offender registration are initially
implicated. See 73 FR at 38062-63. Third, the comment asserted that
running the registration period from conviction provides a readily
ascertainable starting date and is consistent with Congress's decision
to base sex offenders' registration duties on the crimes for which they
have been convicted. Running the registration period from release
likewise provides a definite starting point that is consistent with
SORNA's tiering criteria for sex offenders and the associated
registration periods. See 34 U.S.C. 20911(2)-(4), 20915. The section-
by-section analysis below provides further explanation regarding the
commencement of sex offenders' registration periods under SORNA and why
the starting point is release from custody for an imprisoned offender.
(v) The comment argued that Sec. 72.7(f) violates a constitutional
right to travel by requiring sex offenders to report intended
international travel at least 21 days in advance because, the comment
asserted, it makes registrants liable for felony convictions every time
they travel without providing 21 days' notice. It further asserted that
Congress's failure to incorporate the 21-day notice requirement into
International Megan's Law evinces a congressional judgment that the
requirement is unnecessary and unduly burdensome, and that advance
notice of less than 21 days may afford Federal authorities adequate
time to notify destination countries. However, the Attorney General
initially adopted the 21-day advance notice requirement in the SORNA
Supplemental Guidelines, reflecting the judgment of
[[Page 69865]]
the responsible Federal agencies concerning the time needed for
effective notification regarding international travel by sex offenders,
but recognizing that exceptions to that requirement may be necessary
and appropriate in certain circumstances. See 76 FR at 1637-38. This
rule follows the same approach, generally requiring 21-day advance
notice, but allowing later notice when a sex offender does not
anticipate a trip abroad that far in advance. See Sec. Sec. 72.6(d),
72.7(f), 72.8(a)(2) Ex. 3, and the accompanying discussion in the
section-by-section analysis below. The analysis explains that ``[t]he
21-day advance notice requirement is designed to provide relevant
agencies . . . sufficient lead time for any investigation or inquiry
that may be warranted relating to the sex offender's international
travel, and for notification of U.S. and foreign authorities in
destination countries, prior to the sex offender's arrival in a
destination country.'' In SORNA, as amended by International Megan's
Law, Congress empowered the Attorney General to prescribe ``time and
manner requirements'' in conformity with which sex offenders must
``provide and update information . . . relating to intended travel
outside the United States,'' 34 U.S.C. 20914(c), which Congress would
not logically have done if it deemed unnecessary and unduly burdensome
the 21-day advance notice requirement that the Attorney General had
already adopted in the SORNA Supplemental Guidelines. The comment
provided no persuasive reason to believe that any constitutional right
is violated by these aspects of the rule, which are within the scope of
the express authority Congress has given the Attorney General to
prescribe timing requirements for reporting international travel.
A Comment Alleging Four Inconsistencies With SORNA
A comment argued that this rule is inconsistent with SORNA in four
respects.
(i) The comment claimed that Sec. 72.3, providing in part that sex
offenders must comply with SORNA's requirements regardless of whether a
jurisdiction has substantially implemented those requirements, is
inconsistent with SORNA because Congress did not intend to punish sex
offenders for jurisdictions' failures to implement SORNA. However,
Sec. 72.3 accurately states the law. See Willman, 972 F.3d at 821-24.
Section 72.8(a)(1)(iii) explains that sex offenders are not held liable
for violating requirements under SORNA of which they are unaware, and
Sec. 72.8(a)(2) explains that failure to comply with SORNA's
requirements may be excused where compliance is prevented by a
jurisdiction's failure to carry out a necessary complementary role.
There is accordingly no punishment of sex offenders based on
jurisdictions' shortcomings.
(ii) The comment claimed that Sec. Sec. 72.7(d) and 72.6(c), in
requiring departure-notification by sex offenders in certain
circumstances, conflict with 34 U.S.C. 20913(c), as interpreted by the
Supreme Court in Nichols, 136 S. Ct. at 1117-19. However, as the
section-by-section analysis below explains, the departure-notification
provisions of the rule are premised on powers of the Attorney General
under other provisions of SORNA and are consistent with Nichols.
(iii) The comment claimed that Sec. 72.7(c) is inconsistent with
SORNA in requiring that a sex offender must report changes in
residence, employment, and school attendance in the jurisdictions in
which they occur, because 34 U.S.C. 20913(c) only requires that a sex
offender appear in person and report the change ``in at least 1
jurisdiction involved'' without further specification. However, the
section-by-section analysis below explains that the specification of
the relevant jurisdiction is within the Attorney General's authority
under 34 U.S.C. 20912(b) and 34 U.S.C. 20914(c) to interpret and
implement SORNA and to prescribe the manner in which sex offenders must
provide and update information required by SORNA. The analysis also
explains the justification for this specification based on the purposes
of SORNA's in-person appearance requirements.
(iv) The comment proposed amending Sec. 72.7(e) and (f), which
require sex offenders to report to the residence jurisdiction
information relating to remote communication identifiers, temporary
lodging, vehicles, and international travel. Specifically, the comment
said that sex offenders should be permitted to report such changes to
any ``involved jurisdiction,'' as referenced in 34 U.S.C. 20913(c). In
support of the proposed amendment, the comment argued that, for
example, it could be nearly impossible for an offender who works long
hours at a job in State A, but lives in State B, to report the required
information in State B during normal business hours without having to
miss work. However, Sec. 72.7(e) and (f) do not require the reporting
of information through in-person appearances, but rather allow
reporting by whatever means the jurisdiction allows, such as an email
or phone call.
Other Comments
Other comments proposed additional changes to this rule, beyond
those discussed above, but did not provide persuasive reasons for such
changes. The proposals put forward by one or more commenters included
the following:
A comment proposed that Sec. 72.6(c)(2)'s requirement that a sex
offender report temporary lodging when away from his residence for
seven or more days should be changed to require such reporting only
when the sex offender is away from his residence for 14 or more days.
The reasons given by the comment were that vacation time is generally
two weeks and, for families on opposite coasts, it is impossible to
drive across the country, visit, and drive back within seven days.
However, Sec. 72.6(c)(2) does not prohibit sex offenders from
traveling away from their residences for any amount of time. It just
requires them to report to the residence jurisdiction within three
business days lodging away from their residences for seven or more
days. See Sec. 72.7(e).
A comment objected to the requirement of Sec. 72.6(f) that sex
offenders provide information as to where any vehicle owned or operated
by the sex offender is habitually parked, docked, or otherwise kept, on
the ground that innocent people should not get dragged onto the
registry because they allow a registered sex offender to visit.
However, the referenced provision in Sec. 72.6(f) does not require sex
offenders to report the identities or addresses of people they visit.
It just requires reporting where they habitually keep their vehicles.
As the section-by-section analysis below explains, this information may
be useful to help prevent flight, facilitate investigation, or effect
an apprehension if a sex offender commits new offenses or violates
registration requirements.
A comment objected that the rule would burden sex offenders who
telework or telelearn with employers or schools in remote jurisdictions
by requiring them to travel to those jurisdictions to register or
report changes. However, Sec. 72.4 in the rule requires a sex offender
to register and keep the registration current in each jurisdiction in
which the offender resides, is an employee, or is a student, and Sec.
72.7(c) requires a sex offender to report a change in residence,
employment, or school attendance through in-person appearance in the
relevant jurisdiction. These provisions implement statutory
requirements
[[Page 69866]]
appearing in 34 U.S.C. 20913(a), (c). They do not expand the range of
jurisdictions in which sex offenders are required to register or report
changes beyond those identified in the statute. In particular,
Sec. Sec. 72.4 and 72.7(c) do not require a sex offender to register
or appear in a jurisdiction in which he has a telework or telelearning
connection but no physical presence. See 73 FR at 38062. Nor do they
require a sex offender to register in a jurisdiction in which he has
some work-related presence but in which he does not regularly work or
have a fixed place of employment. See id.
A comment requested clarification regarding (i) the state offenses
for which SORNA requires registration and (ii) whether SORNA requires
sex offenders to register in states whose own laws do not require
registration by those offenders. Regarding the first question, SORNA
identifies the types of offenses, including state offenses, for which
it requires registration, see 34 U.S.C. 20911(1), (5)-(8), and the
SORNA Guidelines provide further explanation, see 73 FR at 38050-52. If
a sex offender does not know that he is required to register because he
is unaware that the offense for which he was convicted gave rise to a
duty to register, then he is not held liable under 18 U.S.C. 2250,
which only penalizes violations of known registration obligations, as
explained in Sec. 72.8(a)(1)(iii) in this rule. Regarding the second
question, SORNA's registration requirements are independent of state
law registration requirements, see Willman, 972 F.3d at 821-24, but a
sex offender's noncompliance with SORNA may be excused where compliance
is prevented by a state's failure to carry out a necessary
complementary role, as explained in Sec. 72.8(a)(2) in this rule.
A comment proposed that the rule clarify Federal prosecutorial
priorities with respect to SORNA violations in jurisdictions that have
not implemented SORNA, suggesting that Federal prosecution be limited
or forgone where the jurisdiction's laws do not impose the same
requirements. However, as Sec. 72.8(a)(1)(iii) in this rule explains,
sex offenders are not held liable under 18 U.S.C. 2250 for violation of
registration requirements of which they are unaware, and, as Sec.
72.8(a)(2) explains, noncompliance with SORNA may be excused where
compliance is prevented by circumstances beyond their control, such as
a jurisdiction's failure to carry out a necessary complementary role.
The comment was not persuasive that the Department of Justice should
adopt a policy of not prosecuting sex offenders for violating known
registration obligations under SORNA, where nothing prevented those
offenders from complying, just because the registration jurisdiction
had not implemented some aspects of SORNA in its registration program.
Federal prosecutorial priorities are usually not established by
regulation, and addressing prosecutorial priorities is not necessary
for purposes of this rulemaking, which articulates sex offenders'
registration requirements under SORNA.
A comment asserted that Sec. 72.3's application of SORNA's
requirements to all sex offenders, regardless of when they were
convicted, may violate due process because, at the state level, courts
may determine whether particular sex offenders are required to
register. Section 72.3 addresses the general scope of SORNA's
application, not whether particular sex offenders are required to
register under state law, and raises no due process issue.
A comment proposed adding to Sec. 72.5 a provision requiring that
a sex offender be removed from the sex offender registry if he receives
a pardon, and that the offense be expunged from all court and law
enforcement records. However, only pardons on the ground of innocence
terminate registration obligations under SORNA, see 73 FR at 38050, and
the Attorney General has no authority to require registration
jurisdictions to expunge the records of sex offenders who are pardoned
in those jurisdictions.
A comment asserted that Sec. 72.6(g), which requires sex offenders
to report professional licenses, is vague and not required by SORNA.
Section 72.6 is sufficiently definite, requiring sex offenders to
provide information concerning licensing that authorizes them to engage
in an occupation or carry out a trade or business. Adopting this
requirement is an exercise of the Attorney General's authority under 34
U.S.C. 20914(a)(8) to require sex offenders to provide other
information, beyond that expressly described in the statute. The
section-by-section analysis below explains that information concerning
professional licenses may be helpful in locating a registered sex
offender if he absconds, may provide a basis for notifying the
responsible licensing authority if the offender's conviction of a sex
offense may affect his eligibility for the license, and may be useful
in crosschecking the accuracy and completeness of other information the
offender is required to provide, e.g., if the sex offender is licensed
to engage in a certain occupation but does not provide name and address
information for a place of employment as required by 34 U.S.C.
20914(a)(4).
A comment proposed generally replacing SORNA's in-person reporting
requirements with reporting through remote communication technology.
SORNA's requirements to report or verify certain information through
in-person appearances are statutory and cannot be abrogated by
rulemaking. See 34 U.S.C. 20913(c), 20918.
A comment proposed expanding the language in the rule about
circumstances that may excuse noncompliance with SORNA's requirements
to include public health emergencies and natural disasters. However,
Sec. 72.8(a)(2) in the rule makes clear that any uncontrollable
circumstances preventing compliance with SORNA, regardless of their
character, may excuse noncompliance under the conditions stated in 18
U.S.C. 2250(c).
A comment proposed encouraging registration jurisdictions to
conform their registration regulations to SORNA to achieve uniformity
across jurisdictions. Jurisdictions are encouraged to conform their
registration requirements to SORNA's minimum national standards by the
funding incentive of 34 U.S.C. 20927 and the extensive guidance and
assistance that the Department of Justice provides to SORNA
implementation through the SMART Office. See 76 FR at 1638. As Sec.
72.1 in this rule notes, the adoption of more extensive or stringent
requirements is within the discretion of the registration
jurisdictions. The matter is explained in the section-by-section
analysis below and in the SORNA Guidelines, see 73 FR at 38032-35,
38046. Making recommendations regarding jurisdictions' adoption of
measures not required by SORNA is outside the scope of this rulemaking,
which articulates SORNA's registration requirements for sex offenders.
Section-by-Section Analysis
The present rule expands part 72 of title 28 of the Code of Federal
Regulations to provide a full statement of the registration
requirements for sex offenders under SORNA. It revises the statement of
purpose and definitional sections in 28 CFR 72.1 and 72.2. It maintains
the existing provision in 28 CFR 72.3 stating that SORNA's requirements
apply to all sex offenders, regardless of when they were convicted, and
incorporates additional language in Sec. 72.3 to reinforce that point.
It also adds to part 72 provisions--Sec. Sec. 72.4 through 72.8--
articulating where sex offenders must register, how long they must
register, what information they must provide, how they must register
and keep their registrations current to
[[Page 69867]]
satisfy SORNA's requirements, and the liability they face for
violations, following SORNA's express requirements and the prior
articulation of standards for these matters in the SORNA Guidelines and
the SORNA Supplemental Guidelines.
Section 72.1--Purpose
Section 72.1(a) states part 72's purpose to specify SORNA's
registration requirements and their scope of application. It further
notes that the Attorney General has the authority pursuant to
provisions of SORNA to specify these requirements and their
applicability as provided in part 72.
Section 72.1(b) states that part 72 does not preempt or limit any
obligations of or requirements relating to sex offenders under other
laws, rules, or policies. It further notes that states and other
governmental entities may prescribe requirements, with which sex
offenders must comply, that are more extensive or stringent than those
prescribed by SORNA. This reflects the fact that SORNA provides minimum
national standards for sex offender registration. It is intended to
establish a floor rather than a ceiling for the registration programs
of states and other jurisdictions, which can prescribe registration
requirements binding on sex offenders under their own laws independent
of SORNA. Jurisdictions accordingly are free to adopt more stringent or
extensive registration requirements for sex offenders than those set
forth in this part, including more stringent or extensive requirements
regarding where, when, and how long sex offenders must register, what
information they must provide, and what they must do to keep their
registrations current. See 73 FR at 38032-35, 38046.
Section 72.2--Definitions
Section 72.2 states that terms used in part 72 have the same
meaning as in SORNA. Hence, for example, references in the part to
registration ``jurisdictions'' mean the 50 states, the District of
Columbia, the five principal U.S. territories, and Indian tribes
qualifying under 34 U.S.C. 20929. See id. 20911(10); 73 FR at 38045,
38048. Likewise, where the part uses such terms as sex offender (and
tiers thereof), sex offense, convicted or conviction, sex offender
registry, student, employee or employment, and reside or residence, the
meaning is the same as in SORNA. See 34 U.S.C. 20911(1)-(9), (11)-(13);
73 FR at 38050-57, 38061-62.
Section 72.3--Applicability of the Sex Offender Registration and
Notification Act
Section 72.3 carries forward in substance current 28 CFR 72.3,
which states that SORNA's requirements apply to all sex offenders,
including those whose sex offense convictions predate SORNA's
enactment. This section was initially adopted on February 28, 2007, and
amended on December 29, 2010. The section and its rationale are
explained further in the interim and final rulemakings that adopted it.
See 72 FR 8894; 75 FR 81849.
Section 72.3, and its modification by this rulemaking, are
constitutionally sound. In Smith v. Doe, 538 U.S. 84 (2003), the
Supreme Court upheld the retroactive application of sex offender
registration requirements against an ex post facto challenge, in
reviewing a state registration system whose major features paralleled
SORNA's in many ways. The commonalities between SORNA and the state
registration program upheld in Smith include required registration
before release from imprisonment; provision of name, address,
employment, vehicle, and other registration information; continued
registration and periodic verification of registration information for
at least 15 years; lifetime registration and quarterly verification for
certain registrants convicted of aggravated or multiple sex offenses;
and public internet posting of information about registrants. See id.
at 90-91. The Federal courts have consistently rejected ex post facto
challenges to SORNA itself. See, e.g., United States v. Felts, 674 F.3d
599, 605-06 (6th Cir. 2012).
Section 72.3 also is not premised on any constitutionally
impermissible delegation of legislative authority to the executive
branch of government. Congress intended that SORNA apply to all sex
offenders, regardless of when they were convicted. See Reynolds, 565
U.S. at 442-45; id. at 448-49 & n. (Scalia, J., dissenting) (agreeing
that Congress intended for SORNA to apply to all sex offenders).
Congress authorized the Attorney General to specify the applicability
of SORNA's requirements to sex offenders with pre-SORNA and pre-SORNA-
implementation convictions, see 34 U.S.C. 20913(d), in order to
effectuate that intent while enabling the Attorney General to address
transitional issues presented in integrating the existing sex offender
population into SORNA's comprehensive nationwide registration system.
See Reynolds, 565 U.S. at 440-42; 72 FR at 8895-97; 73 FR at 38035-36,
38046, 38063-64; 75 FR at 81850-52. In adopting Sec. 72.3, the
Attorney General implemented the relevant legislative policy--that
SORNA's requirements should apply to all sex offenders--to the maximum,
having found no reason to delay or qualify its implementation.
Consequently, as an articulation of a legislative policy embodied in
SORNA, the issuance of Sec. 72.3 pursuant to 34 U.S.C. 20913(d)
involved no exercise of legislative authority and did not contravene
the non-delegation doctrine. See Gundy, 139 S. Ct. at 2123-30
(plurality opinion); id. at 2130-31 (Alito, J., concurring in the
judgment); id., Brief for the United States at 22-38.
Moreover, regardless of any question concerning the validity of 34
U.S.C. 20913(d), Sec. 72.3 is adequately supported on the basis of the
Attorney General's authority to issue guidelines and regulations to
interpret and implement SORNA, appearing in 34 U.S.C. 20912(b). In
Sec. 72.3, the Attorney General interpreted SORNA as intended by
Congress to apply to all sex offenders regardless of when they were
convicted--an interpretation endorsed by the Supreme Court, see
Reynolds, 565 U.S. at 440-45; see also Gundy, 139 S. Ct. at 2123-31--
and he implemented that legislative policy by embodying it in a clearly
stated rule.
The same considerations apply to the amended version of Sec. 72.3
adopted here, which effectuates more reliably the legislative policy
judgment that SORNA's requirements should apply to all sex offenders by
restating the current rule with additional specificity, but which
involves no change in substance. In comparison with the current
formulation of Sec. 72.3, this rule adds a second sentence stating
that (i) all sex offenders must comply with all requirements of SORNA,
regardless of when they were convicted; (ii) this is so regardless of
whether a registration jurisdiction has substantially implemented SORNA
or any particular SORNA requirement; and (iii) this is so regardless of
whether a particular requirement or class of sex offenders is mentioned
in examples in the rules or guidelines issued by the Attorney General.
The first part of the added sentence reiterates Sec. 72.3's
specification of SORNA's applicability to all sex offenders in the form
of an affirmative direction to sex offenders, and it states explicitly
that all of SORNA's requirements so apply.
The added sentence further states that the registration duties
SORNA prescribes for sex offenders are not conditional on registration
jurisdictions' having adopted SORNA's requirements
[[Page 69868]]
in their own registration laws or policies. For example, SORNA requires
sex offenders to register in the states (and other registration
jurisdictions) in which they reside, work, or attend school. See 34
U.S.C. 20913(a). All of the states have sex offender registration
programs, which were initially established long before the enactment of
SORNA. Hence, sex offenders are able to register in these existing
state programs. The fact that a particular state has not modified its
registration program at this time to incorporate the full range of
SORNA requirements does not prevent a sex offender required to register
by SORNA from registering in the state or excuse a failure to do so.
See, e.g., Felts, 674 F.3d at 603-05.
The same principle applies in situations in which a jurisdiction's
law does not track or incorporate a particular SORNA requirement
affecting a sex offender. Consider a situation of this nature in which
SORNA requires a sex offender to register but the law of the state in
which he resides does not. This may occur, for example, because state
law does not require registration based on the particular sex offense
for which the offender was convicted, or because state law requires
registration by sex offenders for shorter periods of time than SORNA,
or because state law does not apply its registration requirements
``retroactively'' as broadly as Sec. 72.3 applies SORNA's requirements
to sex offenders with pre-SORNA convictions. Notwithstanding the
absence of a parallel state law, the registration authorities in the
state may be willing to register the sex offender because Federal law
(i.e., SORNA) requires him to register. Cf. Doe v. Keathley, 290 S.W.3d
719 (Mo. 2009) (state constitutional prohibition of retrospective laws
does not preclude registration based on SORNA). If the state
registration authorities are willing to register the sex offender, he
is not relieved of the duty to register merely because state law does
not track the Federal law registration requirement.
Hence, sex offenders can be held liable for violating any
requirement stated in this rule, regardless of when they were
convicted, and regardless of whether the jurisdiction in which the
violation occurs has adopted the requirement in its own law. This does
not mean, however, that SORNA unfairly holds sex offenders liable for
failing to comply with its requirements, where the requirement is
unknown to the sex offender or impossible for him to carry out. Cf.
Felts, 674 F.3d at 605 (noting concern). Federal enforcement of SORNA's
requirements occurs primarily through SORNA's criminal provision, 18
U.S.C. 2250. That provision makes it a Federal crime for a person
required to register by SORNA to knowingly fail to register or update a
registration as required by SORNA under circumstances supporting
Federal jurisdiction, such as conviction of a Federal sex offense or
interstate or foreign travel. As discussed below, section 2250 holds
sex offenders liable only for violations of known registration
obligations, and it excuses failures to comply with SORNA under certain
conditions if the noncompliance results from circumstances beyond the
sex offenders' control.
Consider first the concern that sex offenders may lack notice
regarding registration obligations. Under the procedures prescribed by
SORNA, and under standard procedures that have generally been adopted
by registration jurisdictions whether or not they have implemented
SORNA's requirements, the registration of sex offenders normally
involves (i) informing sex offenders of their registration duties, (ii)
obtaining from sex offenders signed acknowledgments confirming receipt
of that information, and (iii) having sex offenders provide the
required registration information. See 34 U.S.C. 20919(a); 73 FR at
38062-63.
Registration procedures of this nature inform sex offenders of what
they must do, and the acknowledgments obtained from them provide
evidence that they were so informed. See 76 FR at 1638. If a
jurisdiction that registers a sex offender has not fully revised its
processes for conformity to SORNA, then it may not tell the sex
offender about some of the registration requirements imposed by SORNA,
such as those that the jurisdiction has not incorporated in its own
laws. If the jurisdiction fails to inform a sex offender about some of
SORNA's registration requirements, the sex offender then does not know
about some of his registration obligations under SORNA based on the
information received from the jurisdiction, and may not learn of them
from other sources. In such cases, the possibility of liability under
18 U.S.C. 2250 continues to be limited to cases in which a sex offender
``knowingly fails to register or update a registration as required by
[SORNA].'' The limitation to ``knowing[ ]'' violations provides a
safeguard against liability based on unwitting violations of SORNA
requirements of which a sex offender was not aware. Section
72.8(a)(1)(iii) of this rule, and the accompanying discussion below,
provide further explanation about the limitation of liability under 18
U.S.C. 2250 to cases involving violation of known registration
obligations.
The second concern about fairness involves situations in which a
sex offender has failed to do something SORNA requires because it is
impossible for him to do so. For example, as noted above, a
jurisdiction with laws that do not require registration based on the
particular offense for which a sex offender was convicted may
nevertheless be willing to register him in light of his Federal law
(SORNA) registration obligation. But alternatively, the jurisdiction's
law or practice may constrain its registration personnel to register
only sex offenders whom its own laws require to register. In such a
case, it is impossible for the sex offender to register in that
jurisdiction, though subject to a registration duty under SORNA. This
is so because registration is by its nature a two-party transaction,
involving a sex offender's providing information about where he resides
and other matters as required, and acceptance of that information by
the jurisdiction for inclusion in the sex offender registry. If the
jurisdiction is unwilling to carry out its side of the transaction,
then the sex offender cannot register.
Concerns of this nature are also addressed in SORNA's criminal
provision, 18 U.S.C. 2250. Subsection (c) of section 2250 provides an
affirmative defense to liability for SORNA violations if ``(1)
uncontrollable circumstances prevented the individual from complying;
(2) the individual did not contribute to the creation of such
circumstances in reckless disregard of the requirement to comply; and
(3) the individual complied as soon as such circumstances ceased to
exist.'' A registration jurisdiction's law or practice that precludes
registration of a sex offender, as described above, is a circumstance
that the sex offender cannot control and to which he did not
contribute, so he cannot be held liable for failure to register with
that jurisdiction as SORNA requires.
The defense in section 2250(c) comes with the proviso that the
defendant must comply with SORNA ``as soon as [the preventing]
circumstances cease[ ] to exist.'' For example, consider the case posed
above of a jurisdiction that refuses to register sex offenders based on
a particular offense for which SORNA requires registration, so that a
sex offender residing in the jurisdiction who was convicted of that
offense cannot register there. Suppose that the jurisdiction later
progresses in its implementation of SORNA and becomes willing to
register offenders who have been convicted for that sex offense. In
[[Page 69869]]
light of the proviso, the sex offender's obligation to register revives
once the jurisdiction becomes willing to register him. That is fair,
because the circumstance preventing his compliance with the SORNA
registration requirement no longer exists.
Section 72.8(a)(2) of this rule, and the accompanying discussion
below, provide further explanation about the contours of the
impossibility defense under 18 U.S.C. 2250(c).
Returning to the text of Sec. 72.3, the added sentence states at
the end that sex offenders must comply with SORNA's requirements
``regardless of whether any particular requirement or class of sex
offenders is mentioned in examples in this regulation or in other
regulations or guidelines issued by the Attorney General.'' In
conjunction with the earlier statement in the provision that all sex
offenders must comply with all SORNA requirements, the added language
responds to a judicial decision that did not give full effect to the
current regulation.
Section 72.3, as currently formulated, states that SORNA's
``requirements . . . apply to all sex offenders,'' exercising the
Attorney General's ``authority to specify the applicability of the
requirements of [SORNA] to sex offenders convicted before the enactment
of [SORNA] or its implementation in a particular jurisdiction.'' 34
U.S.C. 20913(d); see Reynolds, 565 U.S. at 441-45 (explaining
Congress's decision to give the Attorney General authority to apply
SORNA's requirements to sex offenders with pre-SORNA convictions).
Nevertheless, in United States v. DeJarnette, 741 F.3d 971 (9th Cir.
2013), the court believed that the Attorney General had not made all of
SORNA's requirements applicable to all sex offenders. The case
concerned the applicability of SORNA's requirement that a sex offender
register initially in the jurisdiction in which he is convicted, if it
differs from his residence jurisdiction, see 34 U.S.C. 20913(a) (second
sentence), where the sex offender's conviction predated SORNA's
enactment. Notwithstanding 28 CFR 72.3, the court concluded that the
Attorney General had not made this SORNA requirement applicable to sex
offenders with pre-SORNA convictions, if they were already subject to
state law registration requirements. DeJarnette, 741 F.3d at 982. The
decision was largely premised on the fact that the particular SORNA
requirement at issue was not mentioned in relation to that particular
class of sex offenders in the examples of sex offenders subject to
SORNA's requirements in 28 CFR 72.3 and the SORNA Guidelines.
DeJarnette, 741 F.3d at 976-80.
The sentence added to Sec. 72.3 by this rulemaking will foreclose
future decisions of this nature and ensure that Sec. 72.3's
application of SORNA's requirements to all sex offenders is given
effect consistently.
The rule includes one further change in Sec. 72.3, affecting the
first example in the provision. The example as currently formulated
describes a sex offender convicted in 1990 and released following
imprisonment in 2007, and says that the sex offender is subject to
SORNA's requirements. In Reynolds, the Supreme Court held that SORNA's
requirements did not apply to sex offenders with pre-SORNA convictions
prior to the Attorney General's exercise of the authority under 34
U.S.C. 20913(d) to specify SORNA's applicability to those offenders.
565 U.S. at 434-35. It follows that SORNA's requirements did not apply
to such sex offenders before the Attorney General's original issuance
of 28 CFR 72.3 on February 28, 2007. Example 1 in Sec. 72.3 might be
misunderstood as suggesting the contrary, i.e., that a sex offender
with a pre-SORNA conviction released from imprisonment at any time in
2007 was immediately subject to SORNA's requirements. Hence, to avoid
any possible inconsistency or apparent inconsistency with the Supreme
Court's decision in Reynolds, the rule changes the example by
substituting a later year for 2007.
Section 72.4--Where Sex Offenders Must Register
Section 72.4 tracks SORNA's express requirement that a sex offender
must register and keep the registration current in each jurisdiction in
which the sex offender resides, is an employee, or is a student, and
must also initially register in the jurisdiction in which the offender
was convicted if that jurisdiction differs from the jurisdiction of
residence. See 34 U.S.C. 20913(a); 73 FR at 38061-62.
Section 72.5--How Long Sex Offenders Must Register
Section 72.5 sets out SORNA's requirements regarding the duration
of registration. SORNA classifies sex offenders into three ``tiers,''
based on the nature and seriousness of their sex offenses and their
histories of recidivism. See 34 U.S.C. 20911(2)-(4); 73 FR at 38052-54.
The tier in which a sex offender falls affects how long the offender
must continue to register under SORNA. The required registration
periods are generally 15 years for a tier I sex offender, 25 years for
a tier II sex offender, and life for a tier III sex offender. See 34
U.S.C. 20915(a); 73 FR at 38068. Paragraph (a) in Sec. 72.5 reproduces
these requirements.
Paragraph (a) of Sec. 72.5 provides an exception ``when the sex
offender is in custody or civilly committed,'' incorporating in
substance an express proviso appearing in SORNA, 34 U.S.C. 20915(a).
The exception and proviso mean that SORNA does not require a sex
offender to carry out its processes for registering or updating
registrations during subsequent periods of confinement, e.g., when
imprisoned because of conviction for some other offense following his
release from imprisonment for the sex offense. This reflects that ``the
SORNA procedures for keeping up the registration . . . generally
presuppose the case of a sex offender who is free in the community''
and that ``[w]here a sex offender is confined, the public is protected
against the risk of his reoffending in a more direct way, and more
certain means are available for tracking his whereabouts.'' 73 FR at
38068. However, registration jurisdictions may see incremental value in
requiring sex offenders to carry out their processes for registering
and updating registrations during subsequent confinement and are free
to do so, though SORNA does not require it.
The proviso relating to custody or civil commitment does not
pertain to or limit SORNA's requirement that initial registration is to
occur while the sex offender is still imprisoned following conviction
for the predicate sex offense. See 34 U.S.C. 20913(b)(1), 20919(a).
Rather, as indicated above, it affects a sex offender's registration
obligations under SORNA if he is later reincarcerated after his
release. The proviso relating to custody or civil commitment also does
not mean that the running of the SORNA registration period is suspended
during such subsequent confinement, and does not otherwise affect the
commencement or duration of a sex offender's registration period under
SORNA.
For example, consider a sex offender, released in 2010 from
imprisonment for a sex offense conviction, whom SORNA requires to
register for 25 years as a tier II sex offender, and suppose the sex
offender is subsequently convicted during the registration period for
committing a robbery and imprisoned for three years for the latter
offense. SORNA's registration requirement for that sex offender
terminates in 2035, although he was incarcerated for three years of the
25-year SORNA registration period. Sex offenders should keep in mind,
however, that their registration jurisdictions are free to impose more
[[Page 69870]]
extensive requirements than SORNA, including longer registration
periods. Hence, the basic registration period under the law of a
jurisdiction in which such a sex offender is registered may be longer
than 25 years. And even if the basic registration period under the
jurisdiction's law is the same as the 25 years required by SORNA, the
jurisdiction may choose not to credit the three years the sex offender
spent in prison for the robbery towards the running of the registration
period under state law. See 73 FR at 38032-35, 38046, 38068. Expiration
of the SORNA registration period accordingly does not obviate the need
for sex offenders to check with registration jurisdictions whether they
remain subject to registration requirements under the jurisdictions'
laws.
As provided in paragraph (b) of Sec. 72.5, the registration period
under SORNA begins to run upon release from imprisonment following a
sex offense conviction, or at the time of sentencing for a sex offense
where imprisonment does not ensue. See 73 FR at 38068. The sex
offender's release from imprisonment, which marks the start of the
registration period for an incarcerated sex offender, may occur later
than the end of the sentence imposed for the sex offense itself. For
example, suppose that a sex offender is convicted for a fatal sexual
assault upon a victim, resulting in a sentence of three years of
imprisonment for the sexual assault and a concurrent or consecutive
sentence of 25 years of imprisonment for murder. Or consider a case in
which a sex offender is sentenced to three years of imprisonment for a
sexual assault and at a later time he is sentenced to 25 years of
imprisonment for an unrelated murder, while still imprisoned for the
sex offense. Or suppose that a sex offender is already serving a 25-
year prison term for an unrelated murder, when he is sentenced to three
years of imprisonment for a sexual assault. In all such cases, the
registration period under SORNA starts to run when the sex offender
actually completes his imprisonment and is released. It does not start
to run while the sex offender is still imprisoned but has completed the
portion of the sentence attributable to the sex offense.
This conclusion follows from the general design and specific
requirements of SORNA's registration procedures. SORNA provides that
incarcerated sex offenders must initially register ``before completing
a sentence of imprisonment with respect to the [registration]
offense.'' 34 U.S.C. 20913(b)(1). SORNA further states that the
correlative responsibilities of registration officials in effecting the
initial registration are to be carried out ``shortly before release of
the sex offender from custody.'' Id. 20919(a); see 73 FR at 38063
(explaining requirement to register shortly before release from
custody). Thereafter, sex offenders must ``keep the registration[s]
current'' for specified periods of time, depending on their
``tier[s].'' 34 U.S.C. 20915(a). In light of these provisions, the
registration period is logically understood as being framed at the
start by the release from custody and at the end by the termination of
the specified time period.
Considering specifically cases in which a sex offender is serving
an aggregate prison term for multiple crimes, 34 U.S.C. 20913(b)(1)
requires registration ``before completing a sentence of imprisonment
with respect to the offense giving rise to the registration
requirement.'' (Emphasis added). It does not require registration
``before completing a sentence of imprisonment for the offense giving
rise to the registration requirement.'' The broader ``with respect to''
language is best understood to mean that the relevant prison term under
section 20913(b)(1) is not the specific sentence imposed for the
predicate sex offense alone, but rather is the full related sentence of
imprisonment, including any prison time imposed for other crimes. The
corresponding language in section 20919(a) supports this understanding,
requiring initial registration of the sex offender ``shortly before
release of the sex offender from custody.'' This language does not
signify that initial registration is to occur when the sex offender is
about to complete the portion of an aggregate sentence attributable
specifically to the sex offense, though the sex offender will remain in
custody because he is serving additional time for another offense or
offenses. Rather, by its terms, section 20919(a) contemplates that
initial registration will occur shortly before the sex offender is
actually released, and section 20913(b)(1) must be understood in the
same way, because section 20913(b)(1) and section 20919(a) describe the
same transaction (initial registration) from different perspectives.
For example, consider the case of a sex offender convicted and
sentenced for a fatal sexual assault, resulting in a three-year prison
term for the sexual assault and a concurrent or consecutive 25-year
sentence for murder. Suppose that the sexual assault involved was a
sexual contact offense against an adult victim, resulting in the
classification of the sex offender as a tier I sex offender and a
registration period of 15 years. See 34 U.S.C. 20911(2)-(4),
20915(a)(1). If the registration period started to run at the end of
the first three years of the sex offender's incarceration, then the 15-
year registration period would expire long before the sex offender's
release, because of the extension of his imprisonment by the murder
sentence. This result would be at odds with section 20919(a)'s
direction that sex offenders are to be initially registered ``shortly
before release . . . from custody,'' because the sex offender's
registration obligation under SORNA would be a thing of the past by
that time, and also with the requirements under sections 20913 and
20915(a)(1) that the sex offender register and keep the registration
current for 15 years, because his registration period would be over
before he registered in the first place.
In addition to the inconsistency with the statutory provisions
discussed above, starting the running of the registration period upon
the conclusion of the portion of a sentence attributable to the
registration offense would result in arbitrary differences in
registration requirements, depending on fortuities in the structuring
of criminal sentences or their descriptions in judgments. For example,
considering again the case of a fatal sexual assault, suppose that the
resulting sentence involves a three-year prison term for the sexual
assault, followed by a consecutive 25-year prison term for murder. As
discussed above, the assumed 15-year registration period for the sexual
assault would then run out long before the sex offender's release, and
he would never have to register at all. But suppose the sentence is
cast instead as a 25-year prison term for murder, followed by a
consecutive three-year prison term for the sexual assault. The
completion of the prison term for the sexual assault would then
coincide with the sex offender's release from prison, and he would have
to register and keep the registration current for 15 years. Because the
ordering of the sexual assault and murder sentences has no relevance to
the public safety purposes served by sex offender registration, the
discrepancy between the two cases as to resulting registration
requirements would be irrational. For this reason as well, the
registration period under SORNA starts to run when the sex offender is
actually released, and not at an earlier time upon completion of the
portion of an aggregate sentence specifically attributable to the
predicate sex offense.
By way of comparison, an offender's term of post-imprisonment
supervised release for a sex offense does not start to run until he is
released from prison,
[[Page 69871]]
including in cases in which the offender's release is delayed by his
serving additional prison time for another offense or offenses. This is
not unfair or illogical; it rationally reflects the nature of
supervision as a measure designed for overseeing and managing offenders
following their release. While sex offender registration differs from
supervision in being a non-punitive, civil regulatory measure, see,
e.g., Smith, 538 U.S. at 92-106; Felts, 674 F.3d at 605-06, it is
likewise concerned with the post-release treatment of sex offenders in
the community. Hence, as with periods of supervision, it is rational
for an offender's registration period for a sex offense to begin to run
when he is released from prison, including in cases in which the
offender's release is delayed by his serving additional prison time for
other criminal conduct. This reflects the nature of registration as a
measure designed for tracking and monitoring sex offenders following
their release.
The principle that the registration period under SORNA commences on
release also applies to cases in which the sex offender is not
imprisoned for the sex offense per se but is imprisoned because of
conviction for another offense. For example, suppose that a sex
offender is convicted of sexually assaulting and robbing a victim,
resulting in a sentence of probation for the sexual assault and a
sentence of five years of imprisonment for the robbery. Considering the
relevant statutory provisions, section 20913(b)(2) makes applicable an
alternative time for initial registration--three business days after
sentencing--only ``if the sex offender is not sentenced to a term of
imprisonment.'' Correspondingly, section 20919(a) provides for initial
registration immediately after sentencing, rather than shortly before
release from custody, only ``if the sex offender is not in custody.''
These provisions, by their terms, do not apply to a sex offender who
remains in custody, though on the basis of an offense other than the
predicate sex offense. Hence, cases of this nature must fall under the
requirement of sections 20913(b)(1) and 20919(a) to effect initial
registration shortly before the sex offender's release, and the
consequences are the same as in the cases discussed above involving
aggregate prison terms for the registration offense and other crimes.
Where the sex offender receives a non-incarcerative sentence for the
registration offense and a prison term for another offense, the
registration period starts upon the sex offender's release, so that
once registered and out in the community he must keep the registration
current for the full registration period specified in 34 U.S.C. 20915,
and not just for a truncated period reduced by his incarceration for
another offense.
In terms of underlying policy, registration is by definition
concerned with tracking sex offenders in the community following their
release. See 73 FR at 38044-45. The tiers and the associated
registration periods under SORNA reflect categorical legislative
judgments as to how long sex offenders should be tracked following
release for public safety purposes. These judgments do not come into
play until the sex offender is released. When that happens may be
affected by many factors--such as the length of the prison term the sex
offender receives for the sex offense; whether the sex offender makes
parole (in a state system having parole) or gets good-conduct credit;
whether the jurisdiction adopts an early release program because of
prison crowding; and whether the sex offender gets additional prison
time because of sentencing for other offenses, related or unrelated to
the sex offense.
Whatever the reasons may be, it is logical to start a post-release
tracking regime--i.e., registration--when the sex offender is actually
released. Initial registration is to occur ``shortly before'' that, as
34 U.S.C. 20919(a) requires, ``in light of the underlying objectives of
ensuring that sex offenders have their registration obligations in mind
when they are released, and avoiding situations in which registration
information changes significantly between the time the initial
registration procedures are carried out and the time the offender is
released.'' 73 FR at 38063.
Hence, the registration period under SORNA starts to run when a sex
offender is released from imprisonment, and not at an earlier time when
the specific sentence for the registration offense has been served, if
the two times differ. This follows from the features of the statutory
provisions discussed above, from the absurdities entailed by a
different interpretation, and from the basic character of registration
as a post-release tracking measure. To the extent that there might be
any uncertainty or argument to the contrary, the Attorney General in
this rule exercises his authority under 34 U.S.C. 20912(b) to interpret
and implement SORNA's provisions affecting the duration of registration
in the manner stated.
Paragraph (c) in Sec. 72.5 sets out SORNA's reduction of its
registration period for certain sex offenders who maintain a ``clean
record'' in accordance with statutory standards. The specific ``clean
record'' conditions are that the sex offender not be convicted of any
felony or any sex offense, successfully complete any period of
supervision, and successfully complete an appropriate sex offender
treatment program (certified by a registration jurisdiction or the
Attorney General). The SORNA registration period is reduced by five
years for a tier I sex offender who maintains a clean record for 10
years, and reduced to the period for which the clean record is
maintained for a tier III sex offender required to register on the
basis of a juvenile delinquency adjudication who maintains a clean
record for 25 years. See 34 U.S.C. 20915(a), (b); 73 FR at 38068-69.
Section 72.6--Information Sex Offenders Must Provide
Section 72.6 sets out the registration information sex offenders
must provide. Much of the specified information is expressly required
by SORNA, see 34 U.S.C. 20914(a)(1)-(7), and the remainder reflects
SORNA's direction that sex offenders must provide ``[a]ny other
information required by the Attorney General,'' id. 20914(a)(8).
In general terms, the required information comprises (i) name,
birth date, and Social Security number; (ii) remote communication
identifiers (including email addresses and telephone numbers); (iii)
information about places of residence, non-residential lodging,
employment, and school attendance; (iv) international travel; (v)
passports and immigration documents; (vi) vehicle information; and
(vii) professional licenses. By providing basic information about who a
sex offender is, where he is, how he gets around, and what he is
authorized to do, these requirements implement SORNA and further its
public safety objectives.
Paragraph (a)(1) of Sec. 72.6 requires that a sex offender provide
his name, including any alias, which is an express SORNA requirement.
See 34 U.S.C. 20914(a)(1); 73 FR at 38055.E0.
Paragraph (a)(2) of Sec. 72.6 requires a sex offender to provide
date of birth information, a requirement the Attorney General has
adopted in the SORNA Guidelines and this rule because date of birth
information is regularly utilized as part of an individual's basic
identification information and hence is of value in helping to
identify, track, and locate registered sex offenders. The paragraph
requires that any date that the sex offender uses as his or her
purported date of birth must be provided, in addition to the actual
date of birth, because sex offenders may, for example,
[[Page 69872]]
provide false date of birth information in seeking employment that
would provide access to children or other potential victims. See 73 FR
at 38057.
Paragraph (a)(3) of Sec. 72.6 requires that a sex offender provide
his Social Security number, which is an express SORNA requirement. See
34 U.S.C. 20914(a)(2). The paragraph further requires provision of any
number that a sex offender uses as his purported Social Security
number. The Attorney General has adopted the latter requirement--
already appearing in the SORNA Guidelines in 2008--because sex
offenders may, for example, attempt to use false Social Security
numbers in seeking employment that would provide access to children or
other potential victims. See 73 FR at 38055.
Paragraph (b) of Sec. 72.6 requires a sex offender to provide all
remote communication identifiers that he uses in internet or telephonic
communications or postings, including email addresses and telephone
numbers. A provision of the Keeping the internet Devoid of Sexual
Predators Act of 2008 (KIDS Act), Public Law 110-400, directed the
Attorney General to use the authority under paragraph (7) of 34 U.S.C.
20914(a) [now designated paragraph (8)] to require sex offenders to
provide internet identifiers. The Attorney General has previously
exercised that authority to require the specified information in the
SORNA Guidelines. See 34 U.S.C. 20916(a); 73 FR at 38055; 76 FR at
1637. The Attorney General has exercised the same authority to require
telephone numbers--a requirement also already appearing in the SORNA
Guidelines--for a number of reasons, including facilitating
communication between registration personnel and sex offenders, and
addressing the potential use of telephonic communication by sex
offenders in efforts to contact or lure potential victims. See 73 FR at
38055.
Paragraph (c)(1) of Sec. 72.6 requires a sex offender to provide
residence address information or other residence location information
if the sex offender lacks a residence address. Providing residence
address information is an express SORNA requirement. See 34 U.S.C.
20914(a)(3). In the SORNA Guidelines, and now in this rule, the
Attorney General has adopted the requirement to provide other residence
location information for sex offenders who do not have residence
addresses, such as homeless sex offenders or sex offenders living in
rural areas that lack street addresses, because having this type of
location information serves the same public safety purposes as knowing
the whereabouts of sex offenders with definite residence addresses. See
73 FR at 38055-56, 38061-62.
Paragraph (c)(2) of Sec. 72.6 requires a sex offender to provide
information about temporary lodging while away from his residence for
seven or more days. In the SORNA Guidelines, and now in this rule, the
Attorney General has adopted this requirement because sex offenders may
reoffend at locations away from the places in which they have a
permanent or long-term presence, and indeed could be encouraged to do
so to the extent that information about their places of residence is
available to the authorities but information is lacking concerning
their temporary lodgings elsewhere. The benefits of having this
information include facilitating the successful investigation of crimes
committed by sex offenders while away from their normal places of
residence and discouraging sex offenders from committing crimes in such
circumstances. See 73 FR at 38056.
Paragraph (c)(3) of Sec. 72.6 requires a sex offender to provide
employer name and address information, or other employment location
information if the sex offender lacks a fixed place of employment.
Providing employer name and address information is an express SORNA
requirement. See 34 U.S.C. 20914(a)(4). The Attorney General has
adopted, in the SORNA Guidelines and this rule, the requirement to
provide other employment location information for sex offenders who
work but do not have fixed places of employment--e.g., a long-haul
trucker whose ``workplace'' is roads and highways throughout the
country, a self-employed handyman who works out of his home and does
repair or home improvement work at other people's homes, or a person
who frequents sites that contractors visit to obtain day labor and
works for any contractor who hires him on a given day. The Attorney
General has adopted this requirement because knowing where such sex
offenders are in the course of employment serves the same public safety
purposes as knowing the whereabouts of sex offenders who work at fixed
locations. See 73 FR at 38056, 38062.
Paragraph (c)(4) of Sec. 72.6 requires a sex offender to provide
the name and address of any place where the sex offender is or will be
a student, an express SORNA requirement. See 34 U.S.C. 20914(a)(5); 73
FR at 38056-57, 38062.
Paragraph (d) of Sec. 72.6 requires a sex offender to provide
information about intended travel outside of the United States. This is
an express SORNA requirement, added by International Megan's Law. See
34 U.S.C. 20914(a)(7); Public Law 114-119, sec. 6(a)(1). A related
provision in Sec. 72.7(f) of this rule requires sex offenders to
report international travel information at least 21 days in advance.
Exercising the general authority under paragraph (8) of 34 U.S.C.
20914(a) [then designated paragraph (7)] to expand the required range
of registration information, the Attorney General initially adopted
these requirements in the SORNA Supplemental Guidelines, see 76 FR at
1637-38, even before the enactment of International Megan's Law, for a
number of reasons:
(i) Realizing SORNA's public safety objectives requires that
registered sex offenders be effectively tracked as they leave and
return to the United States, and that other sex offenders who enter the
United States be identified, so that domestic registration and law
enforcement authorities know about the sex offenders' presence in the
United States and can ensure that they register while here as SORNA
requires. To that end, SORNA directs the Attorney General to establish
and maintain a system for informing relevant registration jurisdictions
about persons entering the United States whom SORNA requires to
register. See 34 U.S.C. 20930. Sections 72.6(d) and 72.7(f) of this
rule are part of that system, requiring registered sex offenders to
inform their registration jurisdictions about travel abroad, including
information that encompasses both their departure from and return to
the United States. Beyond this direct benefit, learning about sex
offenders' entry into the United States may depend on notice from the
authorities of the countries they come from--authorities who may expect
reciprocal notice about sex offenders traveling to their countries from
the United States. Having U.S. sex offenders inform their registration
jurisdictions of travel abroad provides information that is used by
U.S. authorities, including the U.S. Marshals Service and INTERPOL
Washington-U.S. National Central Bureau, to notify the authorities in
the destination countries about sex offenders traveling to their areas.
These foreign authorities may in return advise U.S. authorities about
sex offenders traveling to the United States from their countries,
facilitating the notification of domestic registration jurisdictions
about the sex offenders' presence that section 20930 contemplates. See
73 FR at 38066; 76 FR at 1637.
(ii) Sex offenders traveling abroad may remain subject in some
respects to U.S. jurisdiction, e.g., because a sex offender intends to
go to an overseas
[[Page 69873]]
U.S. military base or to work as or for a U.S. military contractor in
another country. In such cases, the intended travel of the sex offender
may implicate the same public safety concerns in relation to
communities abroad for which the United States has responsibility as it
does in relation to communities within the United States. See 73 FR at
38067; 76 FR at 1637-38.
(iii) More broadly, for a sex offender disposed to reoffend, it may
be attractive to travel to foreign countries where law enforcement is
weaker (or perceived to be weaker), where sexually trafficked children
or other vulnerable victims may be more readily available, and where
the registration and notification measures to which the sex offender is
subject in the United States are inoperative. The United States does
not wish to export the public safety threat posed by its sex offenders
to other countries. Requiring sex offenders in the United States to
inform their registration jurisdictions about international travel
provides a basis for notifying foreign authorities in the destination
countries, which helps to reduce the resulting risks. If these sex
offenders do reoffend in other countries, the resulting human harm to
victims is no less because it occurs in a foreign country, and the
United States' image and foreign relations interests may be adversely
affected as well. Sex offenders from the United States who commit sex
offenses in other countries may be subject to prosecution under various
Federal laws, which reflect the United States' policy of, and
commitment to, combating the commission of crimes of sexual abuse and
exploitation internationally as well as domestically. See, e.g., 18
U.S.C. 1591, 2251(c), 2260, 2423. Consistent tracking of international
travel by sex offenders helps to deter and prevent such crimes, and to
facilitate their investigation if they occur.
Beyond creating a general requirement to report travel outside of
the United States at least 21 days in advance, the SORNA Supplemental
Guidelines authorized the requirement of more definite information
about international travel plans. 76 FR at 1638 (additional directions
may be issued by the SMART Office ``concerning the information to be
required in sex offenders' reports of intended international travel,
such as information concerning expected itinerary, departure and return
dates, and means and purpose of travel''); see Notice of International
Travel, <a href="https://smart.ojp.gov/sorna/notice-international-travel">https://smart.ojp.gov/sorna/notice-international-travel</a>
(providing such directions). Section 72.6(d) in this rule specifically
directs sex offenders traveling abroad to report information regarding
any anticipated itinerary, dates and places of departure, arrival, or
return, carrier and flight numbers for air travel, destination
countries and address or contact information therein, and means and
purpose of travel. More detailed information of this type is needed
because notice only that a sex offender intends to travel somewhere
outside of the United States at some time three weeks or more in the
future would be inadequate to realize the objectives of international
tracking of sex offenders--objectives that include, as discussed above,
notification as appropriate of U.S. and foreign authorities in
destination countries for public safety purposes, preventing and
detecting the offenders' commission of sex offenses in other countries,
and reliably tracking sex offenders as they leave and enter the United
States for purposes of enforcing registration requirements. Requiring
the specified information concerning international travel is justified
by its value in furthering these objectives. See 73 FR at 38066-67; 76
FR at 1634, 1637-38.
Congress endorsed these objectives and the stated conclusion in
International Megan's Law, whose purposes include ``[t]o protect
children and others from sexual abuse and exploitation, including sex
trafficking and sex tourism, by providing advance notice of intended
travel by registered sex offenders outside the United States to the
government of the country of destination [and] requesting foreign
governments to notify the United States when a known sex offender is
seeking to enter the United States.'' Public Law 114-119; see 162 Cong.
Rec. H390-94 (Feb. 1, 2016) (explanation in House floor debate on
passage). As noted above, the measures adopted by International Megan's
Law in support of its international notification system include an
express requirement that sex offenders report intended international
travel, making this requirement a permanent feature of SORNA that
exists independently of regulatory action. See 34 U.S.C. 20914(a)(7);
Public Law 114-119, sec. 6(a)(1).
Section 72.6(d) in this rule follows the new SORNA travel
information provision added by International Megan's Law, which states
that sex offenders must provide ``[i]nformation relating to intended
travel of the sex offender outside the United States, including any
anticipated dates and places of departure, arrival, or return, carrier
and flight numbers for air travel, destination country and address or
other contact information therein, means and purpose of travel, and any
other itinerary or other travel-related information required by the
Attorney General.'' 34 U.S.C. 20914(a)(7). A sex offender must report
all anticipated information in these categories in relation to both the
United States and destination countries as the language of Sec.
72.6(d) makes clear. For example, a sex offender who is leaving the
United States must report any anticipated date and place of departure
from the United States, and also any anticipated date and place of
return to the United States if the sex offender expects to return.
Likewise, with respect to each foreign country to be visited, the sex
offender must report any anticipated date and place of arrival in that
country and any anticipated date and place of departure from that
country.
Paragraph (e) of Sec. 72.6 requires a sex offender to provide
information concerning any passport or passports he has, and concerning
documents establishing his immigration status if he is an alien. The
passports referenced in the paragraph include passports of all types
and nationalities, not just U.S. passports. Where the sex offender has
multiple passports, as may occur, for example, in cases involving dual
citizenship, the paragraph's reference to ``each passport'' the sex
offender has means that the sex offender must report all of his
passports. The Attorney General has included information about
passports and immigration documents as required registration
information in the SORNA Guidelines and in this rule because having
this type of information in the registries serves various purposes.
These include locating and apprehending registrants who may attempt to
leave the United States after committing new sex offenses or
registration violations, facilitating the tracking and identification
of registrants who leave the United States but later reenter while
still required to register, see 34 U.S.C. 20930, and crosschecking the
accuracy and completeness of other types of information that
registrants are required to provide--e.g., if immigration documents
show that an alien registrant is in the United States on a student visa
but the registrant fails to provide school attendance information as
required by 34 U.S.C. 20914(a)(5). See 73 FR at 38056.
Paragraph (f) of Sec. 72.6 requires a sex offender to provide
information concerning any vehicle owned or operated by the sex
offender, information concerning the license plate number or other
registration number or identifier for the vehicle, and information as
to where the vehicle is habitually kept. In part, the paragraph
reflects the express SORNA requirement
[[Page 69874]]
in 34 U.S.C. 20914(a)(6) that a sex offender provide ``[t]he license
plate number and a description of any vehicle owned or operated by the
sex offender.'' This includes, in addition to vehicles registered to
the sex offender, any vehicle that the sex offender regularly drives,
either for personal use or in the course of employment. See 73 FR at
38057. The remainder of the paragraph reflects the Attorney General's
requirement (previously adopted in the SORNA Guidelines) of additional
vehicle-related information that serves similar purposes or may be
useful to help prevent flight, facilitate investigation, or effect an
apprehension if the sex offender commits new offenses or violates
registration requirements. See id.
Paragraph (g) of Sec. 72.6 requires a sex offender to provide
information concerning all licensing of the offender that authorizes
him to engage in an occupation or carry out a trade or business. The
Attorney General has adopted this requirement, initially in the SORNA
Guidelines and now in this rule, because information of this type (i)
may be helpful in locating a registered sex offender if he absconds,
(ii) may provide a basis for notifying the responsible licensing
authority if the offender's conviction of a sex offense may affect his
eligibility for the license, and (iii) may be useful in crosschecking
the accuracy and completeness of other information the offender is
required to provide--e.g., if the sex offender is licensed to engage in
a certain occupation but does not provide name or place of employment
information as required by 34 U.S.C. 20914(a)(4) for such an
occupation. See 73 FR at 38056.
Section 72.7--How Sex Offenders Must Register and Keep the Registration
Current
SORNA requires sex offenders to register and keep the registrations
current in jurisdictions in which they reside, work, or attend school.
Section 72.7 sets out the procedures for doing so, addressing the
timing requirements for registering and updating registrations, the
jurisdictions to which changes in registration information must be
reported, and the means for reporting such changes. In general terms,
the section requires (i) initial registration before release from
imprisonment, or within three business days after sentencing if the sex
offender is not imprisoned; (ii) periodic in-person appearances to
verify and update the registration information; (iii) reporting of
changes in name, residence, employment, or school attendance; (iv)
reporting of intended departure or termination of residence,
employment, or school attendance in a jurisdiction; (v) reporting of
changes relating to remote communication identifiers, temporary lodging
information, and vehicle information; (vi) reporting of international
travel; and (vii) compliance with a jurisdiction's rules if a sex
offender has not complied with the normal time and manner
specifications for carrying out a SORNA requirement.
The requirements articulated in this section in part appear
expressly in SORNA and in part reflect exercises of the powers SORNA
confers on the Attorney General to further specify its requirements.
The authorities relied on include the following:
SORNA directs the Attorney General to issue rules and guidelines to
``interpret and implement'' its provisions, which include the basic
requirement that each sex offender must ``register . . . and keep the
registration current.'' 34 U.S.C. 20912(b), 20913(a). Previously in the
SORNA Guidelines, see 73 FR at 38062-67, and now in this rule, the
Attorney General interprets his authority to ``interpret and
implement'' SORNA as including the authority to articulate a
comprehensive, gap-free set of procedural requirements for registering
and updating registrations. Authority of this nature is needed to
implement SORNA in conformity with the legislative objective of
protecting the public from sex offenders by establishing a
comprehensive national system for their registration. 34 U.S.C. 20901.
Beyond the public safety need, this understanding of section 20912(b)
``takes Congress to have filled potential lacunae'' in SORNA in a
manner consistent with fair notice concerns, empowering the Attorney
General to eliminate any ``vagueness and uncertainty'' regarding how
sex offenders are to comply with SORNA's registration requirements.
Reynolds, 565 U.S. at 441-42.
The Attorney General's authority to interpret and implement SORNA
includes in particular the authority to adopt additional specifications
regarding the time and manner in which its requirements must be carried
out. For example, SORNA expressly requires that sex offenders must
appear in person to report changes of name, residence, employment, and
student status within three business days of such changes. 34 U.S.C.
20913(c). But SORNA does not expressly require the reporting within a
particular timeframe of changes relating to other types of registration
information that also bear directly and importantly on the
identification, tracking, and location of sex offenders. These include
remote communication identifiers (such as email addresses), temporary
lodging information, international travel information, and vehicle
information, as described in Sec. 72.6(b), (c)(2), (d), and (f) of
this rule. Absent a requirement that changes in these types of
information be reported promptly, the information in the registries
about these matters could become seriously out of date, which would in
turn impair SORNA's basic objective of effectively tracking and
locating sex offenders in the community following their release. See 73
FR at 38044-45, 38066-67. The Attorney General accordingly has adopted
definite timing requirements for reporting changes in these types of
information, previously in the guidelines for SORNA implementation, and
now in Sec. 72.7(e)-(f) in this rule.
Adopting such rules reflects an exercise of the Attorney General's
authority to ``interpret and implement'' SORNA, 34 U.S.C. 20912(b), and
more specifically to interpret and implement SORNA's requirement that
sex offenders must ``keep the registration current,'' id. 20913(a).
While the heading of subsection (c) of section 20913 is ``[k]eeping the
registration current,'' the heading only signifies that the subsection
sets out an updating rule for the most basic types of registration
information. It does not signify that nothing more can be required to
keep the registration current. The contrary is evident from section
20915(a), which specifies the duration of required registration under
SORNA. Section 20915(a) uses the same terminology, stating that a sex
offender ``shall keep the registration current'' for the relevant
period of time. Obviously, in providing that a sex offender must ``keep
the registration current'' for a specified period, section 20915(a)
defines the period of time during which a sex offender must continue to
comply with all of SORNA's requirements, given the absence of any other
provision in SORNA specifying how long sex offenders must comply with
its various requirements. Among other consequences, this means that sex
offenders must appear in person periodically to verify and update their
registration information, as required by section 20918, for the
specified period of time--not just that they must report changes in
name, residence, employment, and school attendance, as provided in
section 20913(c), for the specified period of time. That consideration
alone demonstrates that section 20913(c) does not exhaust SORNA's
requirements for ``keep[ing] the registration current.''
[[Page 69875]]
Regarding other matters, such as changes in registration
information relating to remote communication identifiers, temporary
lodging, vehicles, and international travel, the Attorney General has
understood the authority to interpret and implement SORNA's requirement
to keep the registration current as including the authority to adopt
specific time and manner requirements for the reporting of such
changes. Congress ratified this understanding in the KIDS Act. In that
Act, Congress provided that (i) ``[t]he Attorney General, using the
authority provided in [34 U.S.C. 20914(a)(8)], shall require that each
sex offender provide to the sex offender registry those internet
identifiers the sex offender uses or will use'' and (ii) ``[t]he
Attorney General, using the authority provided in [34 U.S.C. 20912(b)],
shall specify the time and manner for keeping current information
required to be provided under this section.'' 34 U.S.C. 20916(a)-(b).
Notably, Congress did not find it necessary to make new grants of
authority to the Attorney General for these purposes and instead
directed the Attorney General to utilize the pre-existing authorities
under SORNA to require internet identifier information and specify the
time and manner for keeping it current. This confirms that the section
20912(b) authority includes the authority to adopt additional time and
manner requirements in the rules and guidelines the Attorney General
issues.
SORNA directs sex offenders to provide for inclusion in the sex
offender registry several expressly described types of registration
information and, in addition, ``[a]ny other information required by the
Attorney General.'' Id. 20914(a)(8). The section 20914(a)(8) authority
underlies the specification of required types of registration
information in Sec. 72.6 in this rule beyond those expressly set forth
in section 20914(a)(1)-(7). The section 20914(a)(8) authority also
provides an additional, independent legal basis for various
requirements in Sec. 72.7, including a number of timing rules it
incorporates.
In relation to some types of required registration information
under this rule, which may be based wholly or in part on the exercise
of the Attorney General's authority under section 20914(a)(8), a timing
requirement is inherent in the nature of the information that must be
reported. This is true of the requirement under Sec. 72.7(d) to report
if a sex offender will be commencing residence, employment, or school
attendance elsewhere or will be terminating residence, employment, or
school attendance in a jurisdiction. It is likewise true of the
requirement under Sec. 72.7(f) to report intended international
travel. Because these provisions constitute requirements to report
present intentions regarding expected future actions, the information
they require necessarily must be reported in advance of the expected
actions.
Section 20914(a)(8) also provides an additional, independent legal
basis for more specific timeframe requirements appearing in Sec. 72.7
of this rule. One of these requirements is that intended international
travel is to be reported at least 21 days in advance of the travel, as
provided in Sec. 72.7(f). In substance, this is a requirement that a
sex offender report to the residence jurisdiction an intention to
travel outside of the United States at some time 21 days or more in the
future. Viewing the expected timing of the travel as an aspect of the
required information, it is within the Attorney General's authority
under 34 U.S.C. 20914(a)(8) to require sex offenders to provide ``[a]ny
other information''--and following the adoption of section 20914(a)(7)
by International Megan's Law, within the Attorney General's more
specific authority under the latter provision to require ``any other .
. . travel-related information.'' Essentially the same point applies to
the rule's specification that sex offenders must report within three
business days changes relating to certain types of registration
information the Attorney General has required. Section 72.7(e) directs
reporting of changes in information within that timeframe relating to
remote communication identifiers, temporary lodging, and vehicles.
Viewed as requirements to report the information that certain actions
or occurrences have taken place within the preceding three business
days, these requirements are within the Attorney General's authority
under 34 U.S.C. 20914(a)(8).
Turning to another SORNA provision supporting time and manner
requirements, 34 U.S.C. 20913(d) authorizes the Attorney General to
specify the applicability of SORNA's requirements to sex offenders
convicted before the enactment of SORNA or its implementation in a
particular jurisdiction ``and to prescribe rules for the registration
of any such sex offenders and for other categories of sex offenders who
are unable to comply with subsection (b).'' The cross-referenced
``subsection (b)'' is the SORNA provision that requires sex offenders
to register initially before release from imprisonment, or within three
business days of sentencing if the sex offender is not imprisoned. As
discussed below in connection with Sec. 72.7(a)(2) of this rule, sex
offenders released from Federal or military custody and sex offenders
convicted in foreign countries generally are unable to register prior
to release. The section 20913(d) authority to prescribe registration
rules for sex offenders ``unable to comply with subsection (b)''
accordingly provides one of the legal bases for the alternative timing
rules in Sec. 72.7(a)(2), which direct registration by sex offenders
in the affected classes within three business days of entering a
jurisdiction following release.
The authorities described above--under 34 U.S.C. 20912(b),
20913(d), and 20914(a)(8)--provided the basis for the Attorney
General's adoption of time and manner specifications for complying with
SORNA's registration requirements in previously issued guidelines under
SORNA. More recently, International Megan's Law added an express,
general grant of authority to the Attorney General to make such
specifications. The relevant provision is 34 U.S.C. 20914(c), which
reads as follows: ``(c) TIME AND MANNER.--A sex offender shall provide
and update information required under subsection (a), including
information relating to intended travel outside the United States
required under paragraph (7) of that subsection, in conformity with any
time and manner requirements prescribed by the Attorney General.''
The cross-referenced ``subsection (a)'' is SORNA's list of all the
registration information that sex offenders must provide. Hence, the
new section 20914(c) requires sex offenders to comply with the Attorney
General's directions regarding the time and manner for providing and
updating all registration information required by SORNA. In addition to
empowering the Attorney General to specify the time and manner for
reporting particular types of registration information, this provision
enables the Attorney General to specify the time and manner for
registration. This is so because registration on the part of a sex
offender consists of providing required registration information to the
registration jurisdiction for inclusion in the sex offender registry.
Given that the Attorney General has the authority under section
20914(c) to specify the time and manner for a sex offender's provision
of each required type of registration information, it follows that the
Attorney General has the authority under section 20914(c) to specify
the time and manner for a sex offender's provision of the required
types of information collectively, which constitutes registration under
SORNA.
[[Page 69876]]
Paragraph (a)--Initial Registration
Paragraph (a)(1) of Sec. 72.7 tracks SORNA's general rule that a
sex offender must initially register--that is, register for the first
time based on a sex offense conviction--before release from
imprisonment, or within three business days of sentencing in case of a
non-incarcerative sentence. See 34 U.S.C. 20913(b) (initial
registration by sex offenders); id. 20919(a) (complementary duties of
registration officials); 73 FR at 38062-65 (related explanation in
guidelines).
Paragraph (a)(2)(i) of Sec. 72.7 addresses the situation of sex
offenders who are released from Federal or military custody or
sentenced for a Federal or military sex offense. There is no separate
Federal registration program for such offenders. Hence, Federal
authorities cannot register these offenders prior to their release from
custody or near the time of sentencing. This is in contrast to the
authorities of the SORNA registration jurisdictions--the states, the
District of Columbia, the five principal U.S. territories, and
qualifying Indian tribes--who may register their sex offenders prior to
release or near sentencing as provided in 34 U.S.C. 20913(b), 20919(a).
SORNA instead enacted special provisions under which Federal
correctional and supervision authorities (i) are required to inform
Federal (including military) offenders with sex offense convictions
that they must register as required by SORNA and (ii) must notify the
(non-Federal) jurisdictions in which the sex offenders will reside
following release or sentencing so that these jurisdictions can
integrate the sex offenders into their registration programs. See 18
U.S.C. 4042(c); Public Law 105-119, sec. 115(a)(8)(C), as amended by
Public Law 109-248, sec. 141(i) (10 U.S.C. 951 note); 73 FR at 38064;
see also 18 U.S.C. 3563(a)(8); id. 3583(d) (third sentence); id.
4209(a) (second sentence) (mandatory Federal supervision condition to
comply with SORNA); 34 U.S.C 20931 (requiring the Secretary of Defense
to provide to the Attorney General military sex offender information
for inclusion in the National Sex Offender Registry and National Sex
Offender Public website).
The timing rule adopted for such situations is that sex offenders
released from Federal or military custody or convicted of Federal or
military sex offenses but not sentenced to imprisonment must register
within three business days of entering or remaining in a jurisdiction
to reside, see 73 FR at 38064, which parallels SORNA's normal timeframe
for registering or updating a registration following changes of
residence, see 34 U.S.C. 20913(c). Section 72.7(a)(2)(i) refers to a
sex offender entering ``or remaining'' in a jurisdiction to reside
because, for example, a Federal sex offender released from a Federal
prison located in a state may remain in that state to reside, rather
than relocating to some other state. In such a case, the three-
business-day period for registering with the state runs from the time
of the sex offender's release.
In terms of legal authority, the requirement of Sec. 72.7(a)(2)(i)
is supported by the Attorney General's authority to interpret and
implement SORNA's requirement to register in the jurisdiction of
residence, 34 U.S.C. 20912(b), 20913(a); the Attorney General's
authority under section 20913(d) to prescribe rules for the
registration of sex offenders who are unable to comply with section
20913(b)'s timing rule for initial registration; and the Attorney
General's authority under section 20914(c) to adopt time and manner
specifications for providing and updating registration information,
which includes the authority to adopt time and manner specifications
for registration as discussed above. Viewing a sex offender's being
released from Federal or military custody and taking up residence in a
jurisdiction as a change of residence, this requirement is also
supportable as a direct application of section 20913(c).
Paragraph (a)(2)(ii) of Sec. 72.7 addresses the situation of
persons required to register on the basis of foreign sex offense
convictions. Registration by the convicting state is not an available
option under SORNA in such cases because foreign states are not
registration jurisdictions under SORNA. See 34 U.S.C. 20911(10). Also,
there may be no domestic jurisdiction in which SORNA requires such
offenders to register--if they are not residing, working, or attending
school in the United States at the time they are released from custody
or sentenced in the foreign country--but SORNA's requirements will
apply if they travel or return to the United States. The rule adopted
for foreign conviction situations is that the sex offender must
register within three business days of entering a domestic jurisdiction
to reside, work, or attend school, see 73 FR at 38050-51, 38064-65,
which parallels SORNA's normal timeframe for registering or updating a
registration following changes of residence, employment, or student
status, see 34 U.S.C. 20913(c).
In terms of legal authority, this requirement is supported by the
Attorney General's authority to interpret and implement SORNA's
requirement to register in jurisdictions of residence, employment, and
school attendance, 34 U.S.C. 20912(b), 20913(a); the Attorney General's
authority under section 20913(d) to prescribe rules for the
registration of sex offenders who are unable to comply with section
20913(b)'s timing rule for initial registration; and the Attorney
General's authority under section 20914(c) to adopt time and manner
specifications for providing and updating registration information,
which includes the authority to adopt time and manner specifications
for registration as discussed above. Insofar as a sex offender's travel
or return to the United States following a foreign conviction involves
a change of residence, employment, or student status, this requirement
is also supportable as a direct application of section 20913(c).
Paragraph (b)--Periodic In-Person Verification
Paragraph (b) of Sec. 72.7 sets out the express requirement of 34
U.S.C. 20918 that sex offenders periodically appear in person in the
jurisdictions in which they are required to register, allow the
jurisdictions to take current photographs, and verify their
registration information, with the frequency of the required
appearances determined by their tiering. See 73 FR at 38067-68.
The second sentence of paragraph (b), exercising the Attorney
General's authority under 34 U.S.C. 20912(b), interprets and implements
section 20918's requirement of verifying the information in each
registry to include correcting any information that is out of date or
inaccurate and reporting any new registration information. With respect
to most types of registration information, other provisions of Sec.
72.7 require reporting of changes within shorter timeframes than the
intervals between periodic in-person appearances for verification.
Hence, a sex offender who has complied with SORNA's requirements is
likely to have reported changes in most types of registration
information prior to his next verification appearance. But Sec. 72.7
does not specially address the time and manner for reporting changes in
some types of registration information. See Sec. 72.6(a)(2)-(3), (e),
(g) (requiring as well information concerning actual and purported
dates of birth and Social Security numbers, passports and immigration
documents, and professional licenses). Sex offenders can
[[Page 69877]]
keep their registrations current with respect to the latter categories
of information by reporting any changes in their periodic
verifications. See 73 FR at 38067-68.
Paragraph (c)--Reporting of Initiation and Changes Concerning Name,
Residence, Employment, and School Attendance
Paragraph (c) of Sec. 72.7 is based on SORNA's express requirement
that ``[a] sex offender shall, not later than 3 business days after
each change of name, residence, employment, or student status, appear
in person in at least 1 jurisdiction involved pursuant to [34 U.S.C.
20913(a)] and inform that jurisdiction of all changes in the
information required for that offender in the sex offender registry.''
34 U.S.C. 20913(c); see 73 FR at 38065-66.
While SORNA provides a definite timeframe for reporting these
changes (within three business days), specifies a means of reporting
(through in-person appearance), and requires reporting of a change in
``at least 1 jurisdiction,'' it does not specify the particular
jurisdiction in which each kind of change--i.e., change in name,
residence, employment, or school attendance--is to be reported. As
discussed earlier, the Attorney General's authority under 34 U.S.C.
20912(b) to interpret and implement SORNA includes the authority to
further specify the manner in which changes in registration information
are to be reported where there are such gaps or ambiguities in SORNA's
statutory provisions. In addition, the Attorney General now has express
authority under 34 U.S.C. 20914(c) to prescribe the manner in which all
required registration information is to be provided and updated.
Exercising those authorities in paragraph (c) in Sec. 72.7, the
Attorney General interprets and implements the requirement of section
20913(c), and prescribes the manner in which sex offenders must provide
and update information about name, residence, employment, or student
status, by specifying the particular jurisdiction in which a sex
offender must appear to report the changes section 20913(c) describes--
in the residence jurisdiction to report a change of name or residence,
in the employment jurisdiction to report a change of employment, and in
the jurisdiction of school attendance to report a change in school
attendance. See 73 FR at 38065.
For example, suppose that a sex offender resides in state A and
commutes to work in State B. Pursuant to 34 U.S.C. 20913(a), the sex
offender must register in both states--in State A as his residence
state, and in State B as his employment state. Suppose that the sex
offender changes his place of residence in State A and continues to
work at the same place in State B. Logically, the sex offender should
carry out his in-person appearance in State A to report his change of
residence in State A, rather than in State B, where his contact with
the latter state (employment) has not changed. Conversely, varying the
example, suppose that the sex offender changes his place of employment
from one employer to another in State B, but continues to reside in the
same place in State A. The sex offender should carry out his in-person
appearance in state B to report his change of employment in State B,
rather than in State A, where his contact with the latter state
(residence) has not changed.
These conclusions follow from the underlying policies of SORNA's
in-person appearance requirements, which aim to provide opportunities
for face to face encounters between sex offenders and persons
responsible for their registrations in the local areas in which they
will be present. Such encounters may help law enforcement personnel to
familiarize themselves with the sex offenders in their areas, thereby
facilitating the effective discharge of their protective and
investigative functions in relation to those sex offenders, and helping
to ensure that their responsibilities to track those offenders are
taken seriously and carried out consistently. Likewise, from the
perspective of sex offenders, face to face encounters with officers
responsible for their monitoring in the local areas where they are
present may help to impress on them that their identities, locations,
and past criminal conduct are known to the authorities in those areas.
Hence, there is a reduced likelihood of their avoiding detection and
apprehension if they reoffend, and this may help them to resist the
temptation to reoffend. See 73 FR at 38065, 38067.
These policies are furthered by sex offenders appearing in person
to report changes in residence, employment, and school attendance in
the jurisdictions in which the changes occur, rather than in other
jurisdictions where they may be required to register, but within whose
borders there has been no change in the location of the sex offender.
Section 72.7(c) in the rule accordingly provides that changes in the
most basic types of location information--residence, employment, school
attendance--are to be reported through in-person appearances in the
jurisdictions in which they occur. Section 72.7(c) also provides
definiteness regarding the reporting of name changes under 34 U.S.C.
20913(c), providing that such changes are to be reported in the
residence jurisdiction, as the jurisdiction in which a sex offender is
likely to have his most substantial presence and contacts.
Paragraph (d)--Reporting of Departure and Termination Concerning
Residence, Employment, and School Attendance
Paragraph (d) of Sec. 72.7 requires sex offenders to inform the
jurisdictions in which they reside if they will be commencing
residence, employment, or school attendance in another jurisdiction or
outside of the United States, and to inform the relevant jurisdictions
if they will be terminating residence, employment, or school attendance
in a jurisdiction. The Attorney General has previously articulated
these requirements in the SORNA Guidelines. See 73 FR at 38065-67.
These requirements are not part of the requirement under 34 U.S.C.
20913(c) to report certain changes through in-person appearances and
they may be reported by any means allowed by registration jurisdictions
in their discretion. See 73 FR at 38067.
Paragraph (d)(1) of Sec. 72.7, relating to notice about intended
commencement of residence, employment, or school attendance outside of
a jurisdiction, and paragraph (d)(2), relating to notice about
termination of residence, employment, or school attendance in a
jurisdiction, are complementary, each applying in certain situations
that may be outside the scope of the other. For example, Sec.
72.7(d)(1) requires a sex offender to inform his residence jurisdiction
if he will be starting a job in another jurisdiction, even if he will
continue to reside where he has resided and will not be terminating any
existing connection to the residence jurisdiction. Section 72.7(d)(2)
requires a sex offender to inform a jurisdiction of his intended
termination of residence, employment, or school attendance in that
jurisdiction ``even if there is no ascertainable or expected future
place of residence, employment, or school attendance for the sex
offender.'' 73 FR at 38066.
Regarding the underlying legal authority for Sec. 72.7(d), its
informational requirements overlap with types of information 34 U.S.C.
20914(a) expressly requires sex offenders to provide, which include
information as to where a sex offender ``will reside,'' ``will be an
employee,'' or ``will be a student.'' Id. 20914(a)(3)-(5). To the
extent Sec. 72.7(d) goes beyond the registration information that
SORNA expressly requires, it is a straightforward exercise of the
Attorney
[[Page 69878]]
General's authority under 34 U.S.C. 20914(a)(8) to require any
additional registration information.
Even before the enactment of International Megan's Law, the
Attorney General's implementation authority under 34 U.S.C. 20912(b)
was understood to include the authority to specify time and manner
requirements for providing and updating registration information, as
discussed above. Currently, section 20914(c) confers express authority
on the Attorney General to adopt the time and manner requirements set
forth in Sec. 72.7(d)--i.e., that (i) intended commencement of
residence, employment, or school attendance in another jurisdiction or
outside the United States is to be reported to the residence
jurisdiction (by whatever means it allows) prior to any termination of
residence in that jurisdiction and prior to commencing residence,
employment, or school attendance in the other jurisdiction or outside
of the United States; and (ii) intended termination of residence,
employment, or school attendance in a jurisdiction is to be reported to
the jurisdiction (by whatever means it allows) prior to the termination
of residence, employment, or school attendance in the jurisdiction.
Section 72.7(d)'s requirement that the intended actions or changes are
to be reported prior to the termination of residence, employment, or
school attendance in the relevant jurisdiction ensures that the
reporting requirement applies while the sex offender is still subject
to the requirement to register and keep the registration current in the
jurisdiction pursuant to 34 U.S.C. 20913(a). This approach avoids any
question about the validity of requiring a sex offender to provide or
update information in a jurisdiction in which he is no longer required
to register under SORNA.
The exercise of the authorities described above in Sec. 72.7(d)
furthers SORNA's objective of creating a ``comprehensive national
system for the registration of [sex] offenders,'' 34 U.S.C. 20901,
which reliably tracks sex offenders as they move away from and into
registration jurisdictions. A sex offender's departure from a
jurisdiction in which he is registered may eventually be discovered--
e.g., because he fails to appear for the next periodic verification of
his registration, see id. 20918--even if he does not affirmatively
notify the jurisdiction that he is leaving. But considerable time may
elapse before that happens, leaving a cold trail for law enforcement
efforts to locate the sex offender, if he does not register in the
destination jurisdiction as SORNA requires.
For example, for a sex offender who decides to change his residence
from one state to another, Sec. 72.7(d) requires the sex offender to
inform the state he is leaving prior to his departure, and Sec.
72.7(c) requires him to inform the destination state within three
business days of his arrival there. Under SORNA's procedures for
information sharing among registration jurisdictions, the state of
origin in such a case directly notifies the identified destination
state. See 34 U.S.C. 20921(b), 20923(b)(3); 73 FR at 38065; 76 FR at
1638. If the sex offender then fails to appear and register as expected
in the destination state, appropriate follow-up ensues, which may
include investigative efforts by state and local law enforcement and
the U.S. Marshals Service to locate the sex offender, issuance of a
warrant for his arrest, and entry of information into national law
enforcement databases reflecting the sex offender's status as an
absconder or unlocatable. See 34 U.S.C. 20924; 73 FR at 38069. In the
context of this system, the requirement of Sec. 72.7(d) for a sex
offender to notify the residence jurisdiction concerning his departure
is an important element. It helps to ensure that agencies and officials
responsible for sex offender registration and its enforcement are
promptly made aware of major changes in the location of sex offenders,
and thereby reduces the risk that sex offenders will disappear in the
interstices between jurisdictions.
In so doing, Sec. 72.7(d) resolves certain potential problems in
the operation of SORNA's registration system following the Supreme
Court's decision in Nichols v. United States, 136 S. Ct. 1113 (2016),
and a similar earlier decision by the Eighth Circuit Court of Appeals,
United States v. Lunsford, 725 F.3d 859 (8th Cir. 2013). Nichols
involved a sex offender who abandoned his residence in Kansas and
relocated to the Philippines, without informing the Kansas registration
authorities of his departure. The issue in the case was whether Nichols
had violated 34 U.S.C. 20913(c), which requires a sex offender ``not
later than three business days after each change of name, residence,
employment, or student status'' to ``appear in person in at least 1
jurisdiction involved pursuant to subsection (a) and inform that
jurisdiction of all changes'' in the required registration information.
The Court noted that subsection (a) of section 20913 mentions three
jurisdictions as possibly ``involved''--``where the offender resides,
where the offender is an employee, and where the offender is a
student''-- which would not include the state of Kansas after Nichols
had moved to the Philippines. Nichols, 136 S. Ct. at 1117 (quoting 34
U.S.C. 20913(a)). The Court further noted that section 20913(c)
requires appearance and registration within three business days after a
change of residence, and Nichols could not have appeared in Kansas
after he left the state. Id. at 1117-18. The Court accordingly
concluded that Nichols' failure to inform Kansas of his departure was
not a violation of section 20913(c), since Kansas was no longer an
``involved'' jurisdiction in which section 20913(c) may require a sex
offender to report changes in residence. Id. at 1118.
Applying the same reasoning to the domestic context, if a sex
offender terminates his residence in a state and thereafter takes up
residence in another state, he cannot violate section 20913(c) by
failing to inform the state he is leaving. For, following the
termination of residence in that state, it is no longer a
``jurisdiction involved'' for purposes of section 20913(c).
There is no comparable problem, however, with Sec. 72.7(d)'s
requirement that a sex offender inform a jurisdiction in which he
resides of his intended departure from the jurisdiction, because Sec.
72.7(d) does not depend on the requirements of section 20913(c).
Rather, Sec. 72.7(d) is grounded in the requirement of section
20914(a) that sex offenders provide certain information, including
``[a]ny other information required by the Attorney General,'' and the
requirement of section 20914(c) that they report the required
information in the ``time and manner . . . prescribed by the Attorney
General.''
The Attorney General's exercise of his authorities under section
20914(a) and 20914(c) to require sex offenders to inform their
registration jurisdictions that they will be going elsewhere in no way
conflicts with Nichols' conclusion that section 20913(c) does not
require such pre-departure notice of intended relocation. Section
20914(a)(8) says that sex offenders must provide ``[a]ny other
information required by the Attorney General.'' The statute does not
say that sex offenders must provide ``[a]ny other information required
by the Attorney General, except for information about intended
departure from the jurisdiction.'' Nichols' interpretation of section
20913(c) provides no basis for reading such an unstated limitation into
section 20914(a)(8). Likewise, Nichols provides no basis for reading
unstated limitations into the Attorney General's authority--now
expressly granted by section 20914(c)--to prescribe time and manner
requirements for providing and updating registration information, which
adequately supports Sec. 72.7(d)'s
[[Page 69879]]
requirement that a sex offender inform the jurisdiction in which he
resides about intended departure prior to any termination of residence
and before going elsewhere.
The Attorney General's adoption of the Sec. 72.7(d) requirements
is also consistent with the Supreme Court's analysis of particular
arguments and issues in Nichols. The salient points are as follows:
First, the Court in Nichols noted that the predecessor Federal sex
offender registration law (the ``Wetterling Act'') required a sex
offender to ``report the change of address to the responsible agency in
the State the person is leaving,'' while SORNA contains no comparable
provision that expressly requires sex offenders to notify jurisdictions
they are leaving. 136 S. Ct. at 1118 (quoting 42 U.S.C. 14071(b)(5)
(2000)). However, SORNA does not attempt to articulate all the
particulars of its registration requirements for sex offenders, instead
authorizing the Attorney General to complete the regulatory scheme
through interpretation and implementation of SORNA. See, e.g., 34
U.S.C. 20912(b), 20913(d), 20914(a)(8), 20914(c). Given the extent of
the Attorney General's powers under SORNA, it was not necessary for
Congress to include an express provision in SORNA requiring sex
offenders to notify jurisdictions they are leaving. Nor can there be
any doubt that requiring such notification is now within the terms of
the Attorney General's powers under SORNA, as discussed above. Indeed,
34 U.S.C. 20923(b)(3)--which provides that a jurisdiction's officials
are to inform each jurisdiction ``from or to which a change of
residence, employment, or student status occurs''--contemplates the
Attorney General's adoption of requirements like those appearing in
Sec. 72.7(d). For if sex offenders were not required to advise the
jurisdictions they leave of their departure and destination, those
jurisdictions could not inform the jurisdictions ``to which'' sex
offenders relocate.
Second, the Court in Nichols rejected an argument that a
jurisdiction necessarily remains ``involved'' for purposes of section
20913(c) if the sex offender continues to appear on the jurisdiction's
registry as a current resident. The Court responded that section
20913(a) gives jurisdictions where the offender resides, is an
employee, or is a student as the only possibilities for an ``involved''
jurisdiction, and does not include a jurisdiction ``where the offender
appears on a registry.'' 136 S. Ct. at 1118. The Court said ``[w]e
decline the . . . invitation to add an extra clause to the text of
Sec. [20]913(a).'' Id. In contrast, Sec. 72.7(d) in this rule does
not require the addition of an extra clause to section 20913(a). It
involves the exercise of the Attorney General's authorities under SORNA
to include the information described in Sec. 72.7(d) in the
information that a sex offender must provide to the jurisdictions
described in the actual clauses of section 20913(a)--i.e., those in
which he resides, is an employee, or is a student.
Third, the Court rejected an argument that Nichols was required to
inform Kansas of his intended departure based on 34 U.S.C.
20914(a)(3)'s direction to sex offenders to provide information about
where they ``will reside.'' The Court noted that ``Sec. [20]914(a)
merely lists the pieces of information that a sex offender must provide
if and when he updates his registration; it says nothing about whether
the offender has an obligation to update his registration in the first
place.'' 136 S. Ct. at 1118. In context, the Court's point was that
section 20914(a)(3) just specifies a type of information sex offenders
must provide, and does not say when they must provide it, so section
20914(a)(3) does not in itself require sex offenders to provide change
of residence information in advance when they leave a jurisdiction. For
example, without more, section 20914(a)(3) might be taken to entail
that sex offenders must advise where they ``will reside'' when
initially registering before release from imprisonment, see 34 U.S.C.
20913(b)(1), but not necessarily that they give advance notice to their
registration jurisdictions of expected future residence on subsequent
relocations.
However, this understanding of section 20914(a)(3) does not imply
any limitation on the Attorney General's authority to require a sex
offender to ``update his registration in the first place,'' Nichols,
136 S. Ct. at 1118, on the basis of 34 U.S.C. 20914(c), which directs
that ``[a] sex offender shall provide and update information required
under subsection (a) . . . in conformity with any time and manner
requirements prescribed by the Attorney General.'' Nor does it imply
any limitation on the Attorney General's authority under SORNA to
require sex offenders to report the full range of information described
in Sec. 72.7(d). In Sec. 72.7(d), as discussed above, the Attorney
General exercises these authorities to require sex offenders to inform
jurisdictions of intended departure and expected future residence prior
to any termination of residence in a jurisdiction.
Finally, the Court in Nichols rejected an argument that Nichols had
to notify Kansas of his departure on the theory that he engaged in two
changes of residence--the first when he abandoned his residence in
Kansas, and the second when he checked into a hotel in the Philippines.
136 S. Ct. at 1118-19. Section 72.7(d) in this rule, however, does not
assume any such multiplicity in changes of residence. Rather, it
establishes a freestanding requirement to inform registration
jurisdictions in advance of termination of residence and commencement
of intended future residence.
At the end of the Nichols decision, the Court noted that--
considering the International Megan's Law amendments to SORNA--``[o]ur
interpretation of the SORNA provisions at issue in this case in no way
means that sex offenders will be able to escape punishment for leaving
the United States without notifying the jurisdictions in which they
lived while in this country.'' 136 S. Ct. at 1119. The Court noted the
addition of a new subsection (b) to 18 U.S.C. 2250, which
``criminalized the `knowin[g] fail[ure] to provide information required
by [SORNA] relating to intended travel in foreign commerce,' '' and the
addition of 34 U.S.C. 20914(a)(7), which requires sex offenders to
provide information about intended international travel. 136 S. Ct. at
1119 (brackets in original) (quoting 18 U.S.C. 2250(b)(2)). The Court
concluded: ``We are thus reassured that our holding today is not likely
to create `loopholes and deficiencies' in SORNA's nationwide sex-
offender registration scheme.'' Id. (quoting United States v.
Kebodeaux, 570 U.S. 387, 399 (2013)).
Section 72.7(d) in this rule similarly helps to ensure that the
interpretation of 34 U.S.C. 20913(c) in Nichols and Lunsford does not
create ``loopholes and deficiencies'' in the operation of SORNA's
tracking system, in relation to both domestic and international
relocations. For example, consider a sex offender who terminates his
residence in a state without informing the state. Suppose the sex
offender is later found elsewhere in the United States, but he cannot
be shown to have taken up residence--or to have been employed or a
student--in another jurisdiction after leaving the original state of
residence. In light of Nichols, section 20913(c) does not require the
sex offender to report his relocation to the original state because it
is no longer an ``involved'' jurisdiction after he leaves, and there
may be no other relevant jurisdiction in which he must report the
change, i.e., one in which he presently resides, is employed, or is a
student. However,
[[Page 69880]]
with Sec. 72.7(d) in effect, a sex offender in this circumstance will
have violated 34 U.S.C. 20914(a) and (c)'s requirements to provide
registration information, including ``[a]ny other information''
prescribed by the Attorney General, in the time and manner prescribed
by the Attorney General. At a minimum, in the case described, the sex
offender would have failed to provide the information that he is
terminating his residence in the original state of residence prior to
his termination of residence in that state, contravening Sec. 72.7(d).
Hence, Sec. 72.7(d) provides an additional safeguard against
registered sex offenders simply disappearing without informing anyone
about their relocation. The consequences for noncompliant sex offenders
include potential prosecution by registration jurisdictions, which have
been encouraged to adopt departure notification requirements similar to
Sec. 72.7(d) in their registration laws by the Attorney General's
prior articulation of those requirements in the SORNA Guidelines. See
73 FR at 38065-66. The consequences of noncompliance with Sec. 72.7(d)
will also include potential Federal prosecution under 18 U.S.C. 2250
for violations committed under circumstances supporting Federal
jurisdiction.
Sex offenders must comply both with the requirements of Sec.
72.7(c) and with the requirements of Sec. 72.7(d). For example,
suppose a sex offender changes residence from State A to State B. It is
not sufficient if (i) the sex offender complies with Sec. 72.7(d) by
telling State A that he is leaving and going to State B, but (ii) he
fails to appear in State B and register there as required by Sec.
72.7(c), and then (iii) he attempts to excuse his failure to comply
with Sec. 72.7(c) on the ground that State A could have told State B
about his relocation. Likewise, it is not sufficient if the sex
offender in such a case (i) complies with Sec. 72.7(c) by registering
in State B, but (ii) he fails to inform State A about the intended
relocation prior to his departure, and then (iii) he attempts to excuse
his failure to comply with Sec. 72.7(d) on the ground that State B
could have told State A about his relocation. As discussed above,
appearance and registration by sex offenders in jurisdictions in which
they commence residence, employment, or school attendance, as required
by Sec. 72.7(c), and notification by sex offenders to jurisdictions in
which they terminate residence, employment, or school attendance, as
required by Sec. 72.7(d), both serve important purposes in SORNA's
registration system as articulated in this rule and the previously
issued SORNA guidelines. Compliance with both requirements is necessary
to the seamless and effective operation of that system for the reasons
explained above.
Paragraph (e)--Reporting of Changes in Information Relating to Remote
Communication Identifiers, Temporary Lodging, and Vehicles
Paragraph (e) requires sex offenders to report to their residence
jurisdictions within three business days changes in remote
communication identifier information, temporary lodging information,
and vehicle information. In terms of legal authority, as discussed
earlier, these requirements are supportable on the basis of the
Attorney General's authority to interpret and implement SORNA's
requirement to keep the registration current, the Attorney General's
authority to expand the information that sex offenders must provide to
registration jurisdictions, and the Attorney General's authority to
prescribe the time and manner for providing and updating registration
information. See 34 U.S.C. 20912(b), 20913(a), 20914(a)(8), (c),
20916(b); 73 FR at 38066; 76 FR at 1637. (The SORNA Guidelines state
that such changes are to be reported ``immediately'' and explain at an
earlier point that ``immediately'' in the context of SORNA's timing
requirements means within three business days, see 73 FR at 38060,
38066.) SORNA does not require that these changes be reported through
in-person appearances and they may be reported by any means allowed by
registration jurisdictions in their discretion. See id. at 38067.
Paragraph (f)--Reporting of International Travel
Paragraph (f) of Sec. 72.7 requires sex offenders to report
intended travel outside of the United States to their residence
jurisdictions. The expected travel must be reported at least 21 days in
advance and, if applicable, prior to any termination of residence in
the jurisdiction. Reporting of information about intended international
travel is an express SORNA requirement following SORNA's amendment by
International Megan's Law. See 34 U.S.C. 20914(a)(7); Public Law 114-
119, sec. 6(a). The underlying reasons for requiring reporting of
international travel are explained above in connection with Sec.
72.6(d) of this rule.
The 21-day advance notice requirement is designed to provide
relevant agencies, including the U.S. Marshals Service and INTERPOL
Washington-U.S. National Central Bureau, sufficient lead time for any
investigation or inquiry that may be warranted relating to the sex
offender's international travel, and for notification of U.S. and
foreign authorities in destination countries, prior to the sex
offender's arrival in a destination country. The requirement that the
intended international travel be reported prior to any termination of
residence in the jurisdiction--potentially an issue in cases in which
the sex offender is terminating his U.S. residence and relocating to a
foreign country--ensures that a SORNA violation has occurred in case of
noncompliance while the sex offender is still residing in the
jurisdiction and hence required by 34 U.S.C. 20913(a) to register and
keep the registration current in that jurisdiction. The requirement to
report intended international travel at least 21 days in advance
applies in relation to all international travel, including both cases
in which the sex offender is temporarily traveling abroad while
maintaining a domestic residence and cases in which the sex offender is
terminating his residence in the particular jurisdiction or the United
States.
The rule recognizes, however, that reporting of intended
international travel 21 days in advance is not possible in some
circumstances. Section 72.8(a)(2) of the rule generally addresses
situations in which sex offenders cannot comply with SORNA requirements
because of circumstances beyond their control, and it specifically
addresses inability to comply with the timeframe for reporting of
international travel in Example 3 in that provision.
In terms of legal authority, the requirement to report intended
international travel to the residence jurisdiction at least 21 days in
advance and prior to any termination of residence is supportable as an
exercise of the express authority of the Attorney General under 34
U.S.C. 20914(c), which states in part that ``[a] sex offender shall
provide and update . . . information relating to intended travel
outside the United States . . . in conformity with any time and manner
requirements prescribed by the Attorney General.'' As discussed above,
the international travel reporting requirement, including its
associated timeframe requirement, is also supportable on the basis of
other SORNA authorities of the Attorney General, which were relied on
in SORNA guidelines preceding the addition of 34 U.S.C. 20914(a)(7),
(c) by International Megan's Law. These authorities include the
Attorney General's authority under 34 U.S.C. 20914(a)(8) to expand the
range of
[[Page 69881]]
required registration information and the Attorney General's authority
under 34 U.S.C. 20912(b) to issue rules to interpret and implement
SORNA's requirement to keep the registration current.
Paragraph (g)--Compliance With Jurisdictions' Requirements for
Registering and Keeping the Registration Current
Paragraph (g) of Sec. 72.7 requires sex offenders to register and
keep the registration current in conformity with the time and manner
requirements of their registration jurisdictions, where they have not
done so in the time and manner normally required under SORNA.
SORNA generally requires sex offenders to register initially before
release from imprisonment or within three business days of sentencing,
but it recognizes that sex offenders may be unable to comply with these
requirements in some circumstances. The difficulty can arise in cases
in which a jurisdiction has no provision for registering certain sex
offenders as required by SORNA at the time of their release--or even no
registration program at all at that time--but the jurisdiction can
register them later as it progresses in its implementation of SORNA's
requirements. The SORNA Guidelines provide guidance to registration
jurisdictions about integrating previously excluded sex offenders into
their registration programs in such circumstances and ensuring that
these sex offenders fully comply with SORNA's requirements. See 73 FR
at 38063-64; see also Smith, 538 U.S. 84 (application of new sex
offender registration requirements to previously convicted sex
offenders does not violate the constitutional prohibition on ex post
facto laws).
Because the normal timeframe for initial registration under SORNA
may be past in these situations, SORNA authorizes the Attorney General
to prescribe rules for registration. Specifically, 34 U.S.C. 20913(d)
gives the Attorney General the authority to specify the applicability
of SORNA's requirements to sex offenders with pre-SORNA or pre-SORNA-
implementation convictions, ``and to prescribe rules for the
registration of any such sex offenders and for other categories of sex
offenders who are unable to comply with'' SORNA's initial registration
requirements. More broadly, as discussed above, the Attorney General's
general authority under 34 U.S.C. 20912(b) to interpret and implement
SORNA includes the authority to fill gaps in SORNA's time and manner
requirements for registering and keeping the registration current, and
34 U.S.C. 20914(c) expressly requires sex offenders to provide and
update registration information required by SORNA in the time and
manner prescribed by the Attorney General.
In section 72.7(g) in this rule, the Attorney General exercises his
authorities under 34 U.S.C. 20912(b), 20913(d), and 20914(c) to require
sex offenders to register and keep their registrations current in the
time and manner specified by their registration jurisdictions, where
the sex offenders have not registered or kept the registrations up to
date in the time and manner normally required by SORNA as articulated
in the earlier portions of Sec. 72.7. This requirement complements the
directions to registration jurisdictions in the SORNA Guidelines about
integrating previously excluded sex offenders and previously omitted
SORNA requirements into their registration programs, with suitable
timeframes and procedures, as the jurisdictions progress with SORNA
implementation. See 73 FR at 38063-64. Of course sex offenders are
independently required by the laws of their registration jurisdictions
to comply with the jurisdictions' time and manner specifications for
registering and updating their registrations. The effect of Sec.
72.7(g) is to adopt the jurisdictions' time and manner specifications
as SORNA requirements in the situations it covers.
Section 72.7(g)(1) includes four examples. The first example
concerns a situation in which a state does not register sex offenders
before release, but a sex offender can register soon after release in
conformity with the state's procedures. The second example concerns a
situation in which a jurisdiction does not register certain sex
offenders at all at the time of their release or entry into the
jurisdiction, but a sex offender in the excluded class becomes able to
register at a later time and is directed by the jurisdiction to do so
after it extends its registration requirements.
As the Supreme Court noted in Reynolds, SORNA, in section 20913(b),
``says that a sex offender must register before completing his prison
term, but the provision says nothing about when a pre-Act offender who
completed his prison term pre-Act must register. . . . Pre-Act
offenders . . . might, on their own, reach different conclusions about
whether, or how, the new registration requirements applied to them. A
ruling from the Attorney General [under section 20913(d)], however,
could diminish or eliminate those uncertainties. . . .'' 565 U.S. at
441-42. In Sec. 72.7(g), the Attorney General exercises his
authorities under sections 20912(b), 20913(d), and 20914(c) to
``eliminate those uncertainties'' in conformity with Congress's intent
concerning the filling of ``potential lacunae'' in SORNA, 565 U.S. at
441-42. Section 72.7(g) fills the gaps in such cases by adopting the
timing rules and procedures of the relevant registration jurisdictions.
This applies in relation to sex offenders who do not register initially
in conformity with SORNA because they were convicted and released
before SORNA's enactment, as described by the Court in Reynolds, and in
relation to all other sex offenders who do not register in accordance
with the normal time and manner requirements under SORNA, e.g., because
of shortfalls in a jurisdictions' registration requirements that may
later be corrected or that allow registration in some variant way.
The third example in Sec. 72.7(g)(1) concerns a sex offender in a
jurisdiction that initially has no procedure for sex offenders to
periodically update registrations through verification appearances as
required by SORNA, but the jurisdiction later directs the sex offender
to do so after it incorporates this aspect of SORNA into its
registration program. Since the periodic verification appearances
required by 34 U.S.C. 20918 fall under SORNA's requirement to keep the
registration current and involve updating the registration information
required by SORNA, it is within the Attorney General's authority under
34 U.S.C. 20912(b) and 20914(c) to specify the time and manner for the
[…truncated; see source link]Indexed from Federal Register on December 8, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.